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Diwakar   21 January 2017

Anticipatory bail in 498a case( punjab high court)

Hi,

My wife filed a FIR against me for dowry harrashment and domestic violance two weeks back. I applied for AB in session/lower court, but it was dismssed by the court. And report submitted by police stating that they need to recover dowary articles, which is still not been recovered and on this ground AB was denied..

Now, I am planning to go to High court to get the AB, but the moment my it was dismissed in lower court police has started troubling my family member, they are going to my parents work place and saying we will arrest you if you son doesn't surrender..

My question to you all is, Can the police arrest my family members in case i don't appear in police station?

What chances do i have of getting the AB in Punjab & Haryana high court? and how long it will take me to get it?

How can I save my family from all this harrashment?

If i surrender myself, can police torture me or beat me in the custody? and how long it will take me to get the regular bail?

Earlierst reply would be appericated. Thanks!



Learning

 11 Replies

Pawan S (06292021602) (Advocate)     22 January 2017

What were the grounds for rejecting your application for anticipatory bail by sessions court?
I do not agree, that your AB got rejected on the ground that “Dowry articles are yet to recover”. Please verify and let me know the proper ground for the rejection. 

Until and unless anticipatory bail is granted the accused can be arrested at any moment. The mere filing of anticipatory bail does not curtail the powers of police to arrest the accused. The clouds of arrest dissipate only when the court grants anticipatory bail. 

There is no other option but to move to the High Court for Anticipatory Bail, through a properly drafted application and presenting the facts and the law in the best possible manner so that the High Court may grant you appropriate reliefs. 

 

 

My question to you all is, Can the police arrest my family members in case i don't appear in police station? 
No. 

 

 

What chances do i have of getting the AB in Punjab & Haryana high court? and how long it will take me to get it? 
Generally, HC grants bail in these kind of cases. Usually some time is consumed in deciding a bail application in the High Court.

 

 

If i surrender myself, can police torture me or beat me in the custody?
Donot surrender now. Relying on police is not safe. The remedies available under law to obtain bail should be exhausted.

2 Like

Diwakar   22 January 2017

Court order was, Petitionr is complaint husband and there are specific allegition againts him. As per reply by police, investigation is still pending, recovery of the dowry atricles is to be effected. Thus, in view of above ratio of law and facts and circusmstances of the case, but without commenting anything of the mertis of the case, I don't deem it fit to grant the concession of anticipatory bail to the petitioner-accused. Hence, the application for anticipatory bail filed by the petitioner is dismissed. file be consigned to the record room...

 

This what court has to say...What do you feel, shall I move to HC? I have heared in HC it will months to get AB, and till the time i get AB i cannot come out otherwise police will arrest me..

FYI...case has registered againts 498a/406/506/323

 

Please guide me, 

Diwakar   22 January 2017

Originally posted by : Ekta
What were the grounds for rejecting your application for anticipatory bail by sessions court?
I do not agree, that your AB got rejected on the ground that “Dowry articles are yet to recover”. Please verify and let me know the proper ground for the rejection. 

Until and unless anticipatory bail is granted the accused can be arrested at any moment. The mere filing of anticipatory bail does not curtail the powers of police to arrest the accused. The clouds of arrest dissipate only when the court grants anticipatory bail. 

There is no other option but to move to the High Court for Anticipatory Bail, through a properly drafted application and presenting the facts and the law in the best possible manner so that the High Court may grant you appropriate reliefs. 

 

 

My question to you all is, Can the police arrest my family members in case i don't appear in police station? 
No. 

 

 

What chances do i have of getting the AB in Punjab & Haryana high court? and how long it will take me to get it? 
Generally, HC grants bail in these kind of cases. Usually some time is consumed in deciding a bail application in the High Court.

 

 

If i surrender myself, can police torture me or beat me in the custody?
Donot surrender now. Relying on police is not safe. The remedies available under law to obtain bail should be exhausted.

Court order was, Petitionr is complaint husband and there are specific allegition againts him. As per reply by police, investigation is still pending, recovery of the dowry atricles is to be effected. Thus, in view of above ratio of law and facts and circusmstances of the case, but without commenting anything of the mertis of the case, I don't deem it fit to grant the concession of anticipatory bail to the petitioner-accused. Hence, the application for anticipatory bail filed by the petitioner is dismissed. file be consigned to the record room...

Sudhir Kumar, Advocate (Advocate)     29 January 2017

My question to you all is, Can the police arrest my family members in case i don't appear in police station?

 

 THIS TECHNIQUE IS VERY HANDY WITH THE POLICE TO BREAK MORAL OF ABSCONDER.  EVEN DACOITS AND TERRORIST BREAK DOWN WITH THIS METHOD.

THEY CAN CONTACT ANYONE ANYWHERE WHO THEY BELIEVE WILL BE ABLE TO GIVE WHEREABOUTS OF THE ABSCONDER.   NONE CAN BELIEVE PARENTS NOT TO BE AWARE WHERE YOU ARE.

THEY CAN TAKE SOMEONE IN CUSTODY IF THEY BELIEVE THAT CUSTODIAL INTERROGANTION IS NEEDED FOR THE PERSON TO SHARE THE WHEREABOUTS OF THE ABSCONDER.

Sudhir Kumar, Advocate (Advocate)     29 January 2017

What chances do i have of getting the AB in Punjab & Haryana high court? and how long it will take me to get it?

 

BASICALLY THIS IS AN ASTROLOGICAL QUESTION

Sudhir Kumar, Advocate (Advocate)     29 January 2017

How can I save my family from all this harrashment?

BY SURRENDER

Sudhir Kumar, Advocate (Advocate)     29 January 2017

If i surrender myself, can police torture me or beat me in the custody?

YOUR BLOG INDICATES THAT THE DOWRY IS NOT RECOVERED.  NOWWHERE YOU STATED THAT YOU HAVE RETURNED OR WILLING TO RETURN THE DOWRY.

ON THE CONTRARY YOU ARE GIVING TOUGH TIME TO THE POLICE AND YET NOT ABLE TO GET ANTICIPATORY BAIL.

HOW CAN YOU EXPECT POLICE TO BE KIND ON YOU.

You can hope not sure for not being beaten if you voluntarily hand over dowry

Sudhir Kumar, Advocate (Advocate)     29 January 2017

and how long it will take me to get the regular bail?
 

ASTROLOGICAL QUESTION

Nitish Banka (lawyer)     24 December 2017

Posted by: nitish788  Categories: Uncategorized 
 

 

Anticipatory bail in 498a /406 offences.

The Supreme court quoted that the sections under 498a and 406 under the Indian penal code are widely misused and for no reason the husband and family members are prosecuted and jailed thereby tarnishing the reputation of the family the sections are exactly termed as “legal terrorism”.

Image result for 498a

 

The supreme court in recent judgement of Arnesh Kumar Vs. State of Bihar has made mandatory compliance of guidelines

All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

But once FIR under 498a/406 is registered the apprehension of arrests looms even with the guidelines and safeguards as to be mandatory implemented by police. The police can follow the guidelines and can arrest the person . still the offences are non-bailable and possibility of an arrest looms on the person.

But generally the trend in court is that the anticipatory bail is granted in the cases of matrimonial offences under the penal code but very strict conditions are imposed these are-:

 

  1. Return of dowry articles

As held in Vijender sharma v. state Anticpatory Bail was granted subject to the conditions that the petitioner will return all the gold/silver jewelry articles still in his possession to the complainant before the concerned SHO.  petitioner will deposit a sum of Rs.1 lakh additionally with the Registrar General of this Court in the name of the complainant, which amount shall be disbursed subject to the outcome of the trial of this case. The petitioner will join investigation as and when required and would not intimidate the witnesses.

2. By giving maintenance amount and returning jewelry

As held in Dr. Sunil Kumar V. State

With consent of parties, afore-noted applications are disposed of with the following directions:

(a) Rajesh would replace all the cheques which he has issued in the name of Shalini Arya pursuant to orders passed by learned Metropolitan Magistrate in the proceedings under Protection of Women against Domestic Violence Act, 2005 by issuing cheques in the name of ‘Shalini’. This would be done within a week from today.

(b) Photocopies of the medical treatment of Baby Bhavishika would be handed over to Rajesh. Rajesh would be entitled to consult a reputed cardiologist and future medical treatment of Baby Bhavishika would be borne by Rajesh.

(c) Future medical of Shalini pertaining to treatment for tuberculosis by her would be reimbursed by Rajesh on the bills being furnished by Shalini to Rajesh.

(d) Rajesh would continue to pay to Shalini Rs. 10,000/- per month or such other amount as may be directed to be paid by the learned Metropolitan Magistrate in the proceedings under Protection of Women against Domestic Violence Act, 2005 by means of a cheque payable in the name of ‘Shalini’.

(e) Rajesh would facilitate visit by the I.O. in company of Shalini to his house for opening the almirah in which cloths and jewellery of Shalini are stated to be kept. Shalini would be permitted to take possession of the same after an inventory is prepared.

(f) All the petitioners would cooperate with the I.O. in the conduct of investigation.

On compliance of afore-noted consent directions, in the event of arrest, petitioners would be released on bail by the I.O. on their furnishing a personal bond in the sum of Rs. 10,000/- each with one surety each in the like amount to the satisfaction of I.O.

18. It is made clear to Rajesh Arya that any violation of the terms of the consent directions would render liable to be withdrawn the benefit of the present order.

3. Bail without any condition of return of dowry items

In Vishal Arora V. state 

In my opinion, the petitioner cannot be denied bail on the ground that dowry and jewellery of the complainant has not been returned so far. The learned counsel appearing on behalf of the petitioner has taken a stand that the entire dowry and jewellery has already been returned to her. There seems to be a dispute between the parties on this aspect. If her dowry and jewellery is not returned, then she may take proper proceedings before the competent Court for return of dowry and jewellery as per law.

In the facts and circumstances of the case stated above, it is ordered that the petitioner may be released on bail in the event of his arrest on his furnishing bail bonds in the sum of Rs.20,000/- with one surety in the like amount to the satisfaction of the arresting officer. Thepetitioner is directed that he shall participate in the investigation as and when called by the Investigating Officer. In the event the petitioner fails to participate in the investigation, then the State will be at liberty to apply for cancellation of his bail.

4. Bail as contents of FIR are vague

In the present case of Pavitra Uraon And Ors. vs State Of Chhattisgarh, if we consider the contents of the FIR, lodged by the complainant on 24-1-2007, it shows that she was being treated with cruelty by the applicant on account of demand of dowry. However, the specifications regarding dowry are vague and general pertaining to the items etc.

5. Complainant residing in matrimonial home

 Proceedings under Section 498A/406/34 IPC are not to be converted into recovery proceedings. However, it is the desire of a Court to try and ensure that matrimonial disputes are resolved. Attempts were made in the present case in this direction, but unfortunately have failed.

Considering the fact that the complainant is still residing in the matrimonial house, but in a separate portion thereof and the fact that she and her children are otherwise being provided with maintenance by the petitioner No. 1, I am inclined to admit the petitioners to anticipatory bail as prayed for. It has to be additionally noted that the petitioners have cooperated with the investigating officer during enquiry. Since 6.2.2004 petitioners are under interim protection.

Petition stands disposed of with the direction that in the event of arrest, on petitioners furnishing a personal bond in the sum of Rs. 5,000 with one surety in the like amount to the satisfaction of the Arresting Officer, petitioner would be released on bail

Conclusion

Generally the bail in matrimonial proceedings are easy but may come with stringent conditions. the Anticipatory bail in cases of 498a/406 are granted easily these days and conditions depends on facts of each case.

Adv. Nitish Banka

nitish@lexspeak.in

Sudhir Kumar, Advocate (Advocate)     24 December 2017

I would also happy to know that under which law or Supreme court order one has a right to abscond when accused of 498a.

under which Supreme Court order the accused of 498a is holy cow and cannot be arersted under any circumstances.

 

under which Supreme Court order police is debarred from even tracing a 498a accused.

under which Supreme Court order he has  right to romefreely without returning the streedhan.

Nitish Banka (lawyer)     22 April 2018

Posted by: Nitish Banka  Categories: Criminal Law 
 

 

Anticipatory Bail in 498a

Anticipatory bail in 498a is advisable and recommended

A family comes under pressure when they come to know that a FIR under section 498a has been lodged in police station.

The first cause of stress is call be Investigating Officer to join investigation to old parents, husband, husband sister or brother.

The trauma is whether they can be arrested or not.

It is not advisable to visit investigating officer without protection from the court this protection is termed as Anticipatory Bail.

The process of getting Anticipatory Bail in 498a

The chances of getting bail under 498a is quite high as I have already discussed in detail in one of my articles

chances of getting anticipatory bail 498a 

The conditions of anticipatory bail are not very stringent but if they are stringent it can always be challenged. I have discussed in detail the conditions Conditional Anticipatory Bail 498a/406

Now as per the judgement of 498a under Rajesh Sharma versus State of Uttar Pradesh. there is a stay on automatic arrest in the cases of 498a. But this judgement is challenge in higher bench and revisit the judgement.

Image result for anticipatory bail

Anticipatory Bail in 498a

Therefore still the permission of getting kin and husband arrested is less. But family will never know whether the permission of arrest is granted or not so there is an apprehension of arrest in 498a and therefore it is advisable to get 498a.

Grounds to argue 498a bail application

  1. Old parents this ground works if parents are old.
  2. Prior divorce petition pending.
  3. Strong roots in society
  4. Ready and willing to join investigation.
  5. Vague allegations
  6. Delay in filing FIR
  7. Return of streedhan articles.

Courts View

Courts will ask for status from the IO. Gen really IO will tell the court that whether permission of arrest is granted or not and if it is not granted then the court will most probably grant interim protection of arrest for certain period of time i.e 7 days so that the IO. will send notice of arrest and on this notice the party will again apply for anticipatory bail in such circumstances.

This is right strategy to abate any arrest circumstances.

By.

Advocate Nitish Banka

9891549997

 


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