K Priyanka Sharma (Modelling) 11 September 2008
Guest (n/a) 11 September 2008
You, condemn the police request for cancelation of bail by submitting of the medical Report of her brother in the court
N.K.Assumi (Advocate) 11 September 2008
Court do not usually cancelled bail once it is granted and cancellation of bail are made on some good grounds by the court. in my opinion the conditions in the bail of reporting and signing in the police station everyday is too harsh and you may ask the court to modify it say once in a week. Moreover your brother is injured and perhaps under medical care, in that case just produced the medical certificate in the court, I am sure court will do justice to your brother. Its not that big issue or to be panic about it.
Rajesh Kumar (Advocate) 11 September 2008
The offence alleged does not fall within Section 67 of the Information Technology Act, as act of "publishing" is necessary to get the Section attracted. Sending SMS is personal communication and doesnot fall within the term "publication". Further, intention to publish must be there. The point may be raised at the appropriate proceeding.
Regarding Section 437 of the Cr.P.C., it applies to all non bailable offences, and there is no requirement of a punishment of 7 years. Further at the time of bail, the court may impose condition. The power of the court cannot be challenged.
I do agree that the condition imposed by the court is onerous, unjustified and illegal, it is our duty to follow the condition and if we find that unjustified, we should request the court to relax the condition, which i m sure courts consider. It was not proper on the part of your brother not to go to Police station despite orders of the court.
Bail will not be cancelled unless the court hears you. You go the court, and put befor the court your unconditional apology and explain to the court your medical problem due to which you were not able to follow the codition imposed by the court. Further, promise the court that you will follow the direction henceforth, without fail.
Attend the Police station for a few days. I am sure police has no investigation to do in this case. Apply to the court for relaxation of the condition after attending the police station for a few days- it will be relaxed.
I think you will be able to tacle the matter. All the best.
Ramakrishna (Senior Advocate) 11 September 2008
ashok kumar (advocate) 11 September 2008
Dear friend, appear before court and protet the bail cancellation petition showin g youre medical ground which is sufficient gound. Along with this through your protest make a request to the court to relax the condition by making an order to appear bfore court once in a week or 15 days so that he may be able to meet out his livelyhood. If the court neglect proceed to the higher court /apex court as per circumstance.
Ashok Kumar Advocate mOBILE 09415717501
Rajesh Kumar (Advocate) 11 September 2008
Thank you Ramakrishna Sir for your encouraging comments.
I fully agree with you that i should read law books before answering any query, which i am not able to do due to paucity of time. I also admit that since i do not practice in Criminal Law, i should be more careful in answering such queries. I would not have answered this query, but for a urgent request by the querist.
However, with due respect towards you, i submit that what i said is perfectly correct and as per law. Let us read Section 437(1),
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;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:
(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 a non-bailable and cognizable offence:
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.]
Part 1 is applicable as the person is accused of a non bailable offence, and he has been brought before a magistrate court. "But" portion is not applicable.
Proviso (i) & (ii) relates to "but" condition, proviso (iii) is applicable to whole sub section. Last line of the proviso: "gives an undertaking that he shall comply such directions as may be given by court."
437(3) is a special situation and not applicable in the present case.
However, to argue that power to impose condition follows from Section 437(3), or from proviso is not justified. When an authority has "discretion", to be exercised judicially, power to impose condition is ancilliary power of exercise of discretion. Well, that is going into constitutional & administrative law. However, the principles are applicable in criminal law too.
I would also like to your notice that conditions may be imposed also in bailable offence under Section 436, as clear from the language of 436(2).
That is what my view is on Section 437.
Although i differ from you sir, Your advice is always a great encouragement to us.
Kiran Kumar (Lawyer) 12 September 2008
with due respect to your dignity, such an offensive language is not expected from a senior advocate.
its really sad to observe that a senior lawyer publishing harsh words on a website which is being accessed by the fraternity and the general public as well.
i would term it nothing less than the defamatory act.
we r not here to pull legs of each other but to discuss the issues and widen our knowledge base.
Rajesh Kumar (Advocate) 13 September 2008
As a lawyer we are always a student- learning everyday.The day we think we know the law- we are dead as lawyer.
I have learnt so many things on this forum- i will always be grateful to the friends and fellow members.
ashok kumar (advocate) 13 September 2008
Seniors should maintain a dignity as well as a role model so that we may follow. This kind of sentence could not be accepted either from seniors or juniors. Every advocate is governed by Advocates Act .It's our cultur which compell us to pay honour towards senior and old aged.
Rajesh Kumar (Advocate) 14 September 2008
Let us forget it. It happens sometime in the heat of arguments.
MANISH (Advocate) 07 October 2008
Dear Ms. Priyanka,
I think that the option of Section 482 of Cr P C will be the best option available to you. Plz go to the High court of Your respective state and pray for :
1. To quash the investigation / FIR / complaint in your brother's case, by stating the good grounds that no case is made out against your brother and he is being disturbed unnecessarily.
2. To modify the conditions imposed in the bail order by making it per week or per month ; or even to cancel any condition imposed.
susanth nair s (lawyer) 07 October 2008
i agree with mr.kirankumar dear ramakrishan sir plz learn to respect other's views