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pooja (developer)     06 August 2014

Re-apply of anticipatory bail in 498a

I've a query regarding anticipatory bail of my husband. My brother-in law was falsely implicated in 498A case around 2 years back in Patna HC, in which my husband's name was also mentioned. However, my husband was staying in US and didn't even attend my brother in law marriage. Based on this, my husband got anticipatory bail around 2 years back. But he didn't get time to visit India and sign the papers. What is the process now? Is it possible to sign the papers from here in US? Will he need to re-apply for Anticipatory bail?

I've heard latest news that Supreme court has recently ruled out of any arrests of family members unless it's a necessity under section 41 knowing the fact that it's mala fide intention of harassing the spouse's family.

Any help is highly appreciated.



Learning

 16 Replies

Tajobsindia (Senior Partner )     06 August 2014

If he has already got AB as you say since last 2 years then read conditions (if any) in his Bail Order from Court. For AB it is not necessary to be physically present in Court. 


Ask the local Advocate who secured his AB this same question as he has special knowledge. 


What you hear about latest Hon'ble SC Judgment on S. 498a IPC is applicable for cases after the announcement date of said Judgments and not retrospectively. Binding Law points to be followed by Police from reference Judgment are mentioned para-wise in below link;


https://www.lawyersclubindia.com/forum/Sc-says-no-to-automatic-arrests-under-misused-anti-dowry-law-104927.asp 

1 Like

pooja (developer)     06 August 2014

Thanks Sir for your prompt reply! My husband's AB order doesn't say much, it just says, no coercive action should be taken against petitioner in connection to the case.Also, I've one other query for which I dropped a private message to you. 

Would appreciate your reply!

Ajay Paplu (Lawyer)     06 August 2014

Preeti Gupta's case is similar to your case and if no coercive action should be taken then he need not to appear personally.
1 Like

pooja (developer)     06 August 2014

Thanks Ajay Sir! Who's Preeti Gupta? Also, this case is in Patna. Not sure, if this will have any different impact.

What is the process then? Should my husband provide power of attorney to my advocate and ask him to sign on my husband's behalf? Also, since this AB is 2 years old, can this be made void/dismissed by Judge? And does he need to take another AB in that case?

pooja (developer)     06 August 2014

Can someone please reply to my queries above? Any help is highly appreciated.

Mobin Sayed (Lawyer)     06 August 2014

Yes u can ask your husband to give power of attorney as a precaution.

1 Like

Ajay Paplu (Lawyer)     07 August 2014

CRIMINAL APPEAL NO. 1512 OF 2010 (Arising out of SLP (Crl.) No.4684 of 2009) Supreme court case you can refer
1 Like

Ajay Paplu (Lawyer)     07 August 2014

CRIMINAL APPEAL NO. 1512 OF 2010 (Arising out of SLP (Crl.) No.4684 of 2009) Supreme court case you can refer

T. Kalaiselvan, Advocate (Advocate)     08 August 2014

@Pooja:  The anticipatory bail obtained by your husband before two years will stand cancelled now since it will be given in the bail order itself that the same to be executed before concerned magistrate court by the accused surrendering himself before the magistrate and furnish sufficient solvency as laid down in the conditions to grant of AB,  failing to comply this within the time stipulated in the order, the AB  will stand cancelled.  Moreover, in criminal cases, the accused cannot be represented by a POA Agent, do not be misguided on this too.  It is better to obtain fresh AB, ask your husband to visit India immediately, get himself surrendered before the court, get enlarged on bail and then return silently.  If he is not doing the sword of domacle will keep hanging over his head, better take wise decision by not getting misguided any further.

1 Like

pooja (developer)     09 August 2014

Thanks Kalaiselvan Sir!

If he can take fresh AB, can he again apply from here and then return to India and present before court to sign papers?

T. Kalaiselvan, Advocate (Advocate)     09 August 2014

Yes, that is what I said.  He has to apply for AB afresh, on being granted, he has to return to India, surrender before the court/police (as the order may be), produce solvency, get enlarged on bail and then for his non-appearance, he can file a petition u/s 205 Cr.P.C before the court seeking permission to dispense with the appearance in the said criminal proceedings.  consult your advocate and proceed as per his further advise.

Biswanath Roy (Advocate)     11 August 2014

Appropriate advice by Learned Expert Mr. Kalaiselvan. Follow him.


(Guest)

I endorse the view of Mr.Kalaiselvan and Mr Biswanath Roy.


1. AB granted U/s 438 crpc follows the guidelines ordered in the pronounced judgement.


2. There is a fixed time duration allotted to the accused for the deposition of bailbond by his sureties(Bailers)


3. Since, two years has gone passed and execution of such AB is not done,hence it has become void.


4. It's wiser to file afresh ABP and once it is granted follow the procedure and then go back to your work place with the permission of court and have an exemption of presence U/s 205crpc.


5. You could also go for quashing the charge frame against him U/s 482 crpc before HC.


ESIS

Ajay Paplu (Lawyer)     12 August 2014

I am satisfied with ESIS reply. Go for quashing instead of filing ABP

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