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pradeep (SA)     29 March 2013

Bail conditions in 498a case

Dear all,

I got the anticipatory bail in  a 498a case through the Gwalior High Court in Jul 2012. Till date the chargesheet has not been filed by the Police, and trial has not begun. Police took my statements in the investigation earlier.

I want to visit foreign country related to the conference visit.

The high court ordered following compliance in the order:-

"The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be." 

Can you please tell to whom should I contact for the approval regarding foreign visit? Is it enough if I get the approval letter from the Investigating officer(that I can get) or should I approach high court for the approval? 

Thanks



 10 Replies

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     29 March 2013

You would have to apply in the trial court with the reasons and time of travel. If the reasons are sufficient, the trial court would give you permission to travel abroad. The trial court can also put some additional conditions like increased surity amount for the same.

 

 

Regards,
 
 

Shonee Kapoor

www.facebook.com/shoneekapoor 
Handphone: +91-8010850498
Email: harassed.by.498a@gmail.com

Yahoogroups: https://groups.yahoo.com/group/sahodar 

If you don't fight for what you want, don't cry for what you LOST.

 

1 Like

pradeep (SA)     29 March 2013

Thanks Shonee.

My point is that the matter is still under investigation, and no chargesheet is filed by the police yet hence trial in the lower court has not begun. Just wanted to make sure, I was granted the anticipatory bail from the HighCourt Gwalior.

As per order of HighCourt in the bail order, I can seek permission to visit abroad from the IO/trial court. Since chargesheet has not been filed, isn't it that permission from IO be enough or I have to go HighCourt from where I got AB.

Thanks !

pradeep (SA)     30 March 2013

Can anybody please reply. 

Thanks !

Sanjeev (Lawyer)     30 March 2013

Permission need to be sought from the trial court even if charge has not been filed. 

Rahul Kapoor (Legal Enthusiast)     30 March 2013

hello,

take permission from the court.

IO cannot grant such permissions.

or ask IO when they are going to file charge sheet ans then plan your visit accordingly.

 

regards-

rahul.gogreen@gmail.com

pradeep (SA)     30 March 2013

 

Thanks a lot everybody for the replies.

I want to understand more why I cannot take permission from the IO. In A/B order, the HighCourt itself said "The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be." 

In my understanding, if the trial has not even started then IO should be able to give the permission, as per the HighCourt order. The Police is not interested in filing chargesheet for a long time, as with every 498a case there is no substance and no proofs against any of my family.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     02 April 2013

Technically, you can seek permission from IO even. But the chances of his/ her giving you any permission very slim. Also, he would try to not give any order in writing. Which can be detrimental to your interests in future.

 

That is why it is advised that you seek permission from the trial court, which would make a judicial record.

 

Please understand most of the advisors here bring practical experience of working with courts/ police and not just pass on legal jargons.

 

 

Regards,


Shonee Kapoor

www.facebook.com/shoneekapoor 
Handphone: +91-8010850498
Email: harassed.by.498a@gmail.com

Yahoogroups: https://groups.yahoo.com/group/sahodar 

If you don't fight for what you want, don't cry for what you LOST.
1 Like

Sudhir Kumar, Advocate (Advocate)     03 April 2013

E#ven IO is likely to take less risk and will advise you to get court permission.

Goutam Prasad (Advocate)     03 April 2013

I have to inform you that conditions are set by court order at the time of granting the bail or anticipatory bail. There is no fixed conditions for all cases. If you have re-written the court order then for sure you can seek permission from IO.


But, I will suggest you to move application for permission in trial court having jurisdiction of your area, where FIR is registered. The same is advised in view that there is less chance that IO would permit through written media and hence later he may refuse to have granted permission.

Alternatively, you may make such application to IO and insit for granting written permission with appropriate seal of police station.

 

Goutam Prasad

Advocate

Supreme Court of India

 

Mob: 9810753838

 

https://www.aegisjurist.com

 

https://www.facebook.com/aegisjurist

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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