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Determined to get justice (Manager)     20 November 2012

Relaxation of bail conditions

SiSter in law has filed false DV/498 case at CAW Delhi naming all family members and subsequently filed FIR at police station. All family members applied for AB and except for the husband, all members were allowed bail by sessions court. Parents, married sister and sister's husband were given notice bail for 7 days. Myself (unmarried sister) was given AB with the condition that I need to seek consent from Metropolitan Magistrate if I want to travel out of Delhi/NCR and out of Country. Brother's bail applicatin is in High Court and Judge has given interim protection till sister in law decides whether she wants to reconcile, go for settlement or press charges. Learned Judge has said that if she and my brother decide to go fpr court monitored trial period for reconciliation, he will put stay on her FIR.

My queries are:

1) I need to travel out of delhi and out of India for work related purpose. Is there anyway I can get relief from the bail condition restricting my travel out of Delhi/NCR? On what grounds I can get such relief?

2) Till I get such relaxation, can someone advice the procedure for applying for consent from the Metropolitan Magistrate? How much time and cost would this entail? do I have to apply through a lawyer?

3) If HC Judge stays the FIR during the trial period for reconciliation, will that automatically act as a stay on the bail conditions or will I have to still seek consent for travel?

4) What are the chances that the reconciliation will work out? we are worried that if my brother returns, she may implicate him in other cases/complaint. How can we mitigate that risk?

Thanks.



Learning

 7 Replies

rahul (director)     20 November 2012

"court monitored trial period for reconciliation" means  your people will take back your bhabhi and live as before.. , 

this is very tricky situation, in this, she cant implicate any further charges as this under court's knowledge,

bescially.. this tricks judges apply to get  the family reunit and save two lives.

your brother have to think.. whether he can still live with her like his wife.

notmally its not proctical

 

in my case also./. many time.. judge and mediation told me to take her back for trial ,, like 1 month,,

but I said NO.

in my case, 498 was not there, only  divorce case.. nothing else.

 

in your travel permission

you have to show the urgency for your travel

  you need to file a application with your submssion and PRAY  to allow u for ttavel

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     20 November 2012

It is not cleart as to what the exact order is. Does it put any restriction on travel.

 

Also court monitored counselling or trial? Trial is always in court, why it needs to be monitored.

 

 

Regards,

 

Shonee Kapoor

www.facebook.com/shoneekapoor 

Handphone: +91-8010850498

Email: harassed.by.498a@gmail.com

 

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

1 Like

Determined to get justice (Manager)     21 November 2012

Shonee,

Apologies if my query was not clear. To clarify:

1) Condition of my anticipatory bail (for unmarried sister) - I cannot move out of Delhi and NCR or travel abroad without prior consent from the metropolitan magistrate. My passport has been deposited with the Investigating officer. While I am ok to hold back on personal travel, I have to travel within India and overseas in connection with my work/professional duties. I manage projects in different parts of India as well as outside. If I have to seek permission everytime i have to travel, especially within India, it will impact my career adversely. Being a single woman, I need to sustain my job to take care of my needs and my old parents. Hence, I need flexibility in travel, esp as the case may go on for years and I dont know how easy it would be to get consent to travel for each occasion.

2) "Court monitored counselling or trial" - I used the word "trial" for want of a better word...what I meant to say is that the Judge has suggested that my bro and his wife should see if they can reconcile differences and start living together on a trial basis as there is a minor child involved (not a "trial" as in a "court trial").

Thanks,

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     21 November 2012

1. You can get permission to travel abroad. Such permission for one off time can be availed easily.

2. I think that staying together is a bad idea, if there is a lot of bad blood between the two.

 

Regards,

 

Shonee Kapoor

1 Like

Pavitra Prabhakar (MBA)     23 November 2012

helo to all ,

please suggest me the legal remedy of the following.

1. In my 498a case wife's cross examination was not taken place due to some unaoidable reason. And our application for recalling her for cross examination was rejected.
further it is directed that you have not availed your opportunity to cross exxamined her.

2. Hon. court summoned the IN laws for witness

I request you all to please suggest what should I do now

(a) go for appeal against the order of the court or

(b) or  let first the witness of IN LAWS be completed.

(c) Is there any time boundation in appealing the courts order

(d) without the cross examination of the main witness final judgement be announced.( in this case witness is alive and fit for cross examination.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     23 November 2012

File for revision within 90 days.

 

 

 

Regards,

 

Shonee Kapoor

www.facebook.com/shoneekapoor 

Handphone: +91-8010850498

Email: harassed.by.498a@gmail.com

 

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

1 Like

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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