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Kumar Avinash (ML)     12 June 2013

Can i get anticipatory bail before filing 498a case

My Father-in-law threatened me to file false case of 498a and other harassment charges.

My wife and my in-laws want me to live separately from my parents. Otherwise they will file false 498a and harassment case against me and my family members. There is no dowry tradition in our community.

My wife had left my home and not living in my house since last one year.

My in-laws has political and police support. On that basis they are threatening me. 

They said they will not file complaint if I leave separately from my parents.

But if I rejects their demand, I'm afraid they will file such case will all non-bailable charges with help of police.

Plz tell me procedure to get Anticipatory bail before filing 498-A with other harassment charges case.



Learning

 12 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     12 June 2013

Anticpatory bail will take place only after F.I.R. from other side.

Pradeep Kumar (Lawyer)     12 June 2013

Yes. You can initiate the proceedings of Anticipatory Bail if you have an appehension against any threat of arrest on accusation of non-bailable offence. Now rather filing for anticipatory you should file complaint on charges of threat against in laws. I would advise only file AB after FIR. Regards Adv.Pradeep K Khatana 09871765000

Advocate Deepak Gupta (Lawyer)     12 June 2013

no provision of blanket order AB after FIR

ANILKUMAR (ADVOCATE)     12 June 2013

The court while considering an anticipatory bail application will first consider whether any case has been registered in your name. It will also consider even prima facie any sound case exists that will probably will not result in acquittal. The court will also look into the track record of the petitioner, whether the case is foisted only for harassing him. If the court finds that no case has been registered against you, then it can tell you to move for anticipatory bail after the case being registered and close the application with liberty to move again. The court can also, in given circumstances direct the police that the applicant should not be arrested even if a case is registered. The court is always having power to mould the relief depending on the facts of the case. Even after the granting of anticipatory bail, if the other party moves the court with evidence that there was abuse of process of the court and show some evidence that the attempt was to hoodwink the court, then it will cause problems.

Manoj Kumar Jain (abc)     12 June 2013

AB after FIR is the best way. Apply AB after FIR only. 

dr.pawan rajyan (member and secretory)     12 June 2013

dear t.avinash,let them complaint in police ,after written complaint case was send to women cell.you should file for AB after first mediation.for details call me 9813032516.or visit 498a.org or join siff,india.regards donot fear.

Chetan Joshi (Advisory/Advocacy)     12 June 2013

Anticipatory bail is issed on the basis of apprehension. What generally amounts to apprehension is a question. There could be a state where you could apprehend arrest without 498a being filed but that is not the case in general.

 

 

What is impotant is the apprehension. You may file for a caveat though.

 

 

Regards

Chetan(dot)7679(at)gmail(dot)com

Kumar Avinash (ML)     12 June 2013

What is procedure after FIR is lodge?
Can police imediately arrest me and my family?

 

 

Note: Currently She is not living in my house since last 1 year.

Abhishek Singh Pawar (lawyer at j and k high court)     31 May 2015

file a written complaint against your in-laws in police station for threatning you. its the duty of police to register your compalint, if they don't , file a complaint against them also with the help of your advocate. 

viranjeetsinghmahal (Advocate)     01 June 2015

Yes. You can file the proceedings of Blanket Anticipatory Bail if you have an apprehension against any threat of arrest on accusation of non-bailable offense. Now you should file complaint on charges of threat against in laws. I would advise you to file Blanket Bail before FIR. Regards Viranjeet Singh Mahal Advocate 09781127373

viranjeetsinghmahal (Advocate)     01 June 2015

Yes. You can file Blanket Anticipatory Bail if you have an appehension against any threat of arrest on accusation of non-bailable offence. Now you can file Blanket anticipatory Bail and further file complaint on charges of threat against in laws. I would advise you to file Blanket Bail before FIR. Regards,

Viranjeet Singh Mahal

Advocate

09781127373

Nitish Banka (lawyer)     09 January 2018

 

 

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


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