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harrassedhusband (manager)     16 May 2014

Urgent need judgements delhi anticipatory bail

Dear Sir,

My wife and her mamaji from UP are threatening false cases and that they will put my parents in jail if I dont give immediate divorce with money. They are adamand on divorce but I have 1 baby who is with my wife.

My efforts to save my family are not showing any results. 

I know that she wants to marry her collegue.

We both are working.

she is staying in UP and I reside in Delhi 

Please guide me what will happen ? How to safeguard my old parents senior citizens from sudden arrest ? 

What is the procedure ?

Can you please guide me from where can I get the following :

1. Delhi Judegements  for 498a anticipatory bail

2. UP Judegements  for 498a anticipatory bail

3. Delhi judegements for regular bail in 498a

3. UP judegements for regular bail in 498a



Learning

 10 Replies

SRISHAILA.DHARANI (Advocate&consultant)     16 May 2014

Accused cannot be subjected to any irrelevant condition for his grant of Anticipatory Bail

 
Supreme Court of India
Munish Bhasin & Ors. vs State on 20 February, 2009
Author: J Panchal
Bench: R.V. Raveendran, J.M. Panchal
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 344 OF 2009 (Arising out of S.L.P. (Criminal) No. 637 of 2008) Munish Bhasin & Ors. ... Appellants Versus
State (Govt. of N.C.T. of Delhi) & Anr. ... Respondents JUDGMENT
J.M. PANCHAL, J.
Leave granted. The complainant (wife of first appellant) to whom notice was ordered on 25.01.2008 is impleaded as second respondent.
2. Heard Counsel.
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3. The appellant (accused no. 1) assails the condition imposed by the High Court requiring him to pay a sum of Rs.12,500/- as maintenance to his wife and child while granting anticipatory bail to him and his parents with reference to the complaint filed by his wife for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Indian Penal Code. 
4. The marriage of the appellant was solemnized with Ms. Renuka on December 05, 2004. She has filed a complaint in November 2006, against the appellant and his parents for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Penal Code on the grounds that after marriage she was subjected to mental and physical cruelty for bringing less dowry and that her stri-dhan entrusted to them has been dishonestly misappropriated by them.
3
5. Apprehending arrest, the appellant and his parents moved High Court of Delhi for anticipatory bail. The application came up for consideration before a Learned Single Judge of the High Court on 22.02.2007. The Learned Additional Public Prosecutor accepted notice and submitted that the matter was essentially a matrimonial dispute and therefore the parties should be referred to the Mediation and Conciliation Cell of the Delhi High Court. The Learned Judge agreed with the suggestion made by the Additional Public Prosecutor and directed the parties to appear before the Mediation and Conciliation Cell of the Delhi High Court on March 02, 2007. The case was ordered to be listed on 10.05.2007. The Learned Judge further directed that in the event of arrest of the appellant and his parents, before the next date of hearing, they shall be released on bail on their furnishing personal bond in the sum of Rs.25,000/- each with one surety of like amount to the satisfaction of the Investigating Officer/ Arresting Officer concerned, subject however, to the condition that the appellant and 4
his parents shall surrender their passports to the Investigating Officer and shall file affidavits in the Court that they would not leave the country without prior permission of the Court.
6. From the records, it appears that the conciliation proceedings failed and therefore the bail application was taken up for hearing on merits. On representation made by the wife of the appellant, the counsel of the appellant was directed to produce appellant's salary slip. Accordingly, the salary slip of the appellant was produced before the Court which indicated that the appellant was drawing gross salary of Rs.41,598/- and after deductions of advance tax etc., his net salary was Rs.33,000/-. The Learned Single Judge of the High Court took the notice of the fact that the appellant had the duty to maintain his wife and the child and therefore as a condition for grant of anticipatory bail, directed the appellant, by the order dated 07.08.2007 to pay a sum of Rs.12,500/- per month by way of maintenance to his 5
wife and child. The Learned Single Judge also directed to pay arrears at the rate of Rs. 12,500/- per month from August 2005, that is Rs. 3,00,000/- within six months. The imposition of these conditions for grant of anticipatory bail is the subject matter of challenge in the instant appeal.
7. 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 6
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
7
(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. 
8. 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 438 of 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 8
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, 9
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 10
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 438 of 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.
9. For the foregoing reasons, the appeal succeeds. The direction contained in order dated August 07, 2007 rendered by Learned Single Judge of Delhi High Court in Bail Application No. 423 of 2007 requiring the appellant to pay a sum of Rs.12,500/- per month by way of maintenance (both past and future) to his wife and child 11
is hereby deleted. Rest of the directions contained in the said order are maintained. It is however clarified that any amount received by the wife of the appellant pursuant to the order of the High Court need not be refunded by her to the appellant and will be adjusted subject to the result of application for maintenance filed by wife of the appellant under Section 125 of the Code before the appropriate Court.
10. The Appeal is accordingly disposed of. ..............................J.
[R.V. Raveendran]
..............................J.
[J.M. Panchal]
New Delhi;
February 20, 2009.
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Monday, 17 March 2014

conditions like recovery of articles need not be given while considering Anticipatory Bail U/s 438 : Apex court

 
Supreme Court of India
Mohinder Kaur vs State Of Punjab on 14 March, 2008
Author: . A Pasayat
Bench: . A Pasayat, P Sathasivam
CASE NO.:
Appeal (crl.) 490 of 2008
PETITIONER:
Mohinder Kaur
RESPONDENT:
State of Punjab
DATE OF JUDGMENT: 14/03/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
JUDGMENT
CRIMINAL APPEAL NO. 490 OF 2008
(Arising out of SLP (Crl.) No. 8213 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Punjab and Haryana High Court dismissing the petition filed in terms of Section 438 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.').
3. The appellant had sought for protection in terms of aforesaid provision in FIR No. 105 dated 15.8.2007 registered at the Police Station Bhogpur, District Jalandhar. The complainant had alleged that she was married to Ranjit Singh, son of the appellant on 23.10.2002. The said Ranjeet Singh went abroad in February, 2002 and came back after about one year. Alleging that the complainant was harassing her for brining insufficient dowry, the complaint was lodged in the police station. The appellant filed a petition under Section 438 Cr.P.C. for protection. The High Court observed that ordinarily in such cases the court is inclined to grant protection against arrest to family members of husband of the complainant, however the facts of the present case were different. It was stated that the appellant herself was a retired police officer who was serving as an inspector of Punjab police. Her son was residing abroad and she had 
transferred/bequeathed her property in favour of her grand son who is born to another son who is settled abroad. No part of the immovable property has been given to grand daughter born to the complainant. The High Court, therefore, concluded that the complainant and her minor daughter were left without any source of livelihood. It was noted that serious allegations were made against the appellant. The hostile treatment meted out to the grand daughter speaks loudly that the allegations leveled carry prima facie substance. After making these observations, the High Court also accepted the contention that the appellant being a recently retired police officer, the local police were hob-nobbing with her and the investigations were not being done properly. The High Court therefore, dismissed the petition. But at the same time it directed the Senior Superintendent of Police, Jalandhar to depute a fairly senior police officer to monitor the on-going investigation and take all lawful measures to interrogate the appellant and recover the dowry articles. Her passport was also seized and she was not to be permitted to go abroad without the permission of the Court. 
4. Learned counsel for the appellant submitted that the conclusions of the High Court are clearly without any foundation. The appellant was serving neither as an inspector nor was she retired recently. She was serving as a constable and had retired nearly 10 years back i.e. in May, 1999. Further it is inconceivable that a retired constable who had retired 10 years back would have influence over the police officials to render the investigation ineffective. It is printed out after death of her husband, she was inducted as a Constable on compassionate grounds. 
5. The direction for recovering dowry articles clearly means as if certain dowry articles were there. It is therefore submitted that all the directions are insupportable.
6. Learned counsel for the State on the other hand submitted that looking into the gravity of the accusation order has been passed.
7. As rightly submitted by learned counsel for the appellant the High Court seems to have completely acted on materials which do not support the conclusions. By way of illustration, it can be said that the appellant was not serving as an inspector but was a constable who had retired about a decade back. Therefore the conclusion of the High Court that she was in a position to make the investigation ineffective does not have any foundation. The other directions given like recovery of dowry articles etc. need not have been given while dealing with an application under Section 438 Cr.P.C. filed by her. The directions for seizing the appellant's passport also could not have been given a petition under Section 438 Cr.P.C. filed by her.
8. The directions regarding deputation of a senior police officer to monitor the investigation and/or recover the dowry articles to seize her passport stand deleted.
9. The parameters for exercising of power under Section 438 Cr.P.C. has been highlighted by this Court in Adri Dharan Das v. State of W.B. (2005(4)SCC 303). 
10. Keeping in view the parameters highlighted in Adri Dharan Das's case (supra), we direct in case the appellant surrenders before the concerned court and moves for bail the application shall be disposed of expeditiously preferably on the date it is filed. We make it clear that we have not expressed any opinion on the acceptability of the prayer for bail to be made in terms of the aforesaid direction.
11. The appeal is allowed to the aforesaid extent.
 

Monday, 10 March 2014

It's all about Anticipatory Bail..!!

 

Anticipatory Bail

There are many misconceptions floating around regarding Anticipatory Bail. One such misconception is that a 498a case is an automatic arrest warrant. However, it does not necessarily have to be so. In 498A cases, the moment you get an anticipatory bail, the police are eliminated as a factor and you’ve pretty much won the most difficult part of this fight. Another misconception is that the filing of FIR is a must before getting Anticipatory Bail. Again, this is simply not true.
 
Most of the times, lawyers don’t fully understand the provision of anticipatory bail given in Section 438 of Cr. P. C. This article tries to explain the meaning, usage, conditions applicable, regarding Anticipatory Bail with the help of recent Supreme Court Judgments.
 
What is Anticipatory Bail?
Section 438 of the Code of Criminal Procedure, 1973 provides that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
 
As observed in Balchand Jain Vs. State of M.P.`anticipatory bail' means `bail in anticipation of arrest'. The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. When a competent court grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative.
 
Here is one important point to be kept in mind with regard to anticipatory bail:
 
The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest   founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
 
The Supreme Court of India explains the meaning of Anticipatory Bail and lays the conditions for granting it. Here are the 9 guidelines as laid down by a constitution bench, which the  Courts are required to keep in mind while dealing with an application  for grant of anticipatory bail:
i)    Though the power conferred under Section 438 of  the Code can be described as of an extraordinary 
character, but this does not justify the conclusion that the power must be exercised in exceptional  cases only because it is of an extraordinary  character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances  justifying its exercise.
ii)   Before power under sub-section (1) of Section 438  of the Code is exercised, the Court must be satisfied that the applicant invoking the provision  has reason to believe that he is likely to be arrested  for a non-bailable offence and that belief must be  founded on reasonable grounds. Mere “fear” is not  belief, for which reason, it is not enough for the  applicant to show that he has some sort of vague  apprehension that some one is going to make an  accusation against him, in pursuance of which he  may be arrested. The grounds on which the belief of  the applicant is based that he may be arrested for a  non-bailable offence, must be capable of being  examined by the Court objectively. Specific events  and facts must be disclosed by the applicant in  order to enable the Court to judge of the reasonableness of his belief, the existence of which  is the sine qua non of the exercise of power  conferred by the Section.
iii)  The observations made in Balchand Jain’s case  (supra), regarding the nature of the power conferred  by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be  read into Section 438 cannot be treated as conclusive on the point. There is no warrant for  reading into Section 438, the conditions subject to  which bail can be granted under Section 437(1) of  the Code and therefore, anticipatory bail cannot be  refused in respect of offences like criminal breach of  trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances  may broadly justify the grant of bail in such cases  too, though of course, the Court is free to refuse anticipatory bail in any case if there is material  before it justifying such refusal.
iv)   No blanket order of bail should be passed and the  Court which grants anticipatory bail must take care  to specify the offence or the offences in respect of  which alone the order will be effective. While  granting relief under Section 438(1) of the Code,  appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted  investigation. One such condition can even be that  in the event of the police making out a case of a likely discovery under Section 27 of the Evidence  Act, the person released on bail shall be liable to be  taken in police custody for facilitating the recovery.  Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.
v)    The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest  founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
vi)   An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.
vii)  The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties.  The ad-interim order too must conform to the requirements of the Section and suitable conditions    should be imposed on the applicant even at that stage.
ix)   Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.
Here is the judgment:
SAVITRI AGARWAL & ORS. -- APPELLANT (S)
VERSUS
STATE OF MAHARASHTRA & ANR. -- RESPONDENT (S)
JUDGMENT: D.K. JAIN, J.
Leave granted.
The appellants herein are the mother-in-law, father- in-law, husband and the younger brother of the father-in-law of the deceased- Laxmi. They are accused of having committed offences punishable under Sections 498A, 304-B read with Section 34 of the Indian Penal Code, 1860 (for short `the IPC') and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
Material facts, leading to the filing of these appeals, are as follows: The deceased-Laxmi got married to appellant No.3 on 26th January, 2006. On 13th October, 2006, they were blessed with a baby boy. On 6th December, 2007 at about 4.30 p.m., appellant No.2 (father-in-law) is stated to have heard the cries of Laxmi and when he rushed to the second floor of the house, he saw her burning. He tried to douse the fire. Laxmi told him that her son was lying in the bathroom. He rushed to the bathroom and found that the child also had burns. Laxmi and her child were removed to the hospital. At about 6.40 p.m., her statement was recorded by the Executive Magistrate wherein she stated that she and her son caught fire when she was pouring kerosene oil in the lamp which accidentally fell down; the oil got spilled over and both of them got burnt. At about 10.55 p.m., the minor child expired. On receiving the intimation, parents of Laxmi reached the hospital at about 11.30 p.m. the same night. On 7th December, 2007, at about 1.40 p.m. another statement of Laxmi was recorded by the Executive Magistrate wherein again she reiterated that she had got burnt accidentally.
On 8th December, 2007, father of Laxmi lodged a complaint with Police against the appellants, inter alia, alleging that after the marriage of his daughter on 26th January, 2006, the appellants were torturing her for not meeting dowry demand of Rs.2 lakhs and earlier on 15th July, 2006, due to torture she had left the matrimonial home, intending to commit suicide but due to intervention of the relatives, she returned back. On the said complaint, the police registered an FIR against the appellants for offences under Section 498A read with Section 34, IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
On 6th December, 2007 the appellants applied for grant of anticipatory bail before the Sessions Judge, Amravati, who, vide order dated 10th December, 2007, initially granted interim protection to them from arrest till the next date of hearing i.e. 17th December, 2007. On 16th December, 2007, Laxmi expired and offence under Section 304-B IPC came to be added against the appellants. On 18th December, 2007, after hearing both sides and upon taking into consideration the said two dying declarations made by the deceased - Laxmi, statements of the complainant and witnesses and after perusing the case diary, the learned Sessions Judge confirmed the anticipatory bail granted to the appellants.
Aggrieved, the State of Maharashtra and the complainant filed petitions before the High Court for cancellation of anticipatory bail granted to the appellants. As noted earlier, by the impugned order, the High Court has cancelled the anticipatory bail granted to the appellants, on the ground that the Sessions Judge had failed to apply his mind to certain vital circumstances viz. - absence of mention of lantern and match stick in the panchnama; necessity of lantern and its lighting at 4 p.m. in the afternoon when the house was equipped with an inverter; the daughter-in-law doing such risky work with one year old child, particularly when elders in the family were present in the house and had everything been well in the house, there was no occasion for the parents of the deceased to implicate her in-laws. Inter alia, observing that the evidence, which directly involved the appellants, had been ignored, rendering the order passed by the Sessions Judge perverse, as noted above, the High Court has set aside the said order. The High Court has also noted that the offences complained of, being of serious nature, there was no ground to grant anticipatory bail to the appellants. Being aggrieved, the appellants are before us in these appeals.
The appellants contended that the High Court has failed to appreciate the factual background of the case, particularly the fact that in both the dying declarations recorded by the Executive Magistrate, the deceased had not levelled any allegation against the appellants for demanding any dowry or for torturing her for any other purpose. It was strenuously urged that the second dying declaration recorded on 7th December, 2007 at about 1.40 p.m. was in the presence and perhaps at the instance of the father of the deceased, who admittedly had arrived in the hospital on 6th December, 2007 at 11.30 p.m., yet the deceased did not level any allegation against the appellants. Learned counsel argued that the anticipatory bail having been granted by the Sessions Judge upon consideration of the relevant material placed before him by the prosecution, viz. the dying declarations, the statements recorded by the investigating officer and the case diary, in the absence of any complaint by the Investigating Officer that the appellants were not cooperating in the investigations after the grant of interim protection on 10th December, 2007, or that they had misused the anticipatory bail granted to them, there was no other overwhelming circumstance before the High Court, warranting interference with the judicial discretion exercised by the Sessions Judge and cancellation of bail.
Section 438 of the Code confers on the High Court and the Court of Session, the power to grant `anticipatory bail' if the applicant has `reason to believe' that he may be arrested on accusation of having committed a non-bailable offence. The expression `anticipatory bail' has not been defined in the Code. But as observed in Balchand Jain Vs. State of M.P.`anticipatory bail' means `bail in anticipation of arrest'. The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. When a competent court grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative. The Court went on to observe that the power of granting `anticipatory bail' is somewhat extraordinary in character and it is only in `exceptional cases' where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail" that such power may be exercised. The power being rather unusual in nature, it is entrusted only to the higher echelons of judicial service, i.e. a Court of Session and the High Court. Thus, the ambit of power conferred by Section 438 of the Code was held to be limited.
Keeping in view the reports of the Law Commission, Section 438 was inserted in the Code. Sub-section (1) of Section 438 enacts that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or to the Court of Session for a direction that in the event of his arrest he shall be released on bail, and the Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail. Sub-section (2) empowers the High Court or the Court of Session to impose conditions enumerated therein. Sub- section (3) states that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, he shall be released on bail.
In Gurbaksh Singh Sibbia (supra), the Constitution Bench was called upon to consider correctness or otherwise of principles laid down by the Full Bench of High Court of Punjab & Haryana in Gurbaksh Singh Sibbia Vs. State of Punjab.The Full Bench of the High Court summarized the law relating to anticipatory bail as reflected in Section 438 of the Code and laid down eight principles which were to be kept in view while exercising discretionary power to grant anticipatory bail.
The Court felt that wide discretionary power conferred by the Legislature on the higher echelons in the criminal justice delivery system cannot be put in the form of straight-jacket rules for universal application as the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. A circumstance which, in a given case, turns out to be conclusive, may or may not have any significance in another case. While cautioning against imposition of unnecessary restrictions on the scope of the Section, because, in its opinion, over generous infusion of constraints and conditions, which were not to be found in Section 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with unreasonable restrictions, the Constitution Bench laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:
i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.
ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.
iii) The observations made in Balchand Jain's case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
 
iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.
v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest 1 founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.
vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.
ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.
At this juncture, it would be appropriate to note that the view expressed by this Court in Adri Dharan Das Vs. State of W.B. to the effect that while dealing with an application under Section 438 of the Code, the Court cannot pass an interim order restraining arrest as it will amount to interference in the investigation, does not appear to be in consonance with the opinion of the Constitution Bench in Sibbia's case (supra). Similarly, the observation that power under Section 438 is to be exercised only in exceptional cases seems to be based on the decision in Balchand's case (supra), which has not been fully approved by the Constitution Bench. On this aspect, the Constitution Bench stated thus:
"The observations made in Balchand Jain regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot therefore be treated as concluding the points which arise directly for our consideration. We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Sections 437 and 439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand Jain in an altogether different context on an altogether different point". (Emphasis Supplied)
It would also be of some significance to mention that Section 438 has been amended by the Code of Criminal Procedure (Amendment) Act, 2005. The amended Section is more or less in line with the parameters laid down in Sibbia's case (supra). However, the amended provision has not yet been brought into force.
Having considered the case in hand on the touchstone of the aforementioned parameters, we are of the opinion that the High Court has committed a serious error in reversing the order passed by the Additional Sessions Judge, Amravati granting anticipatory bail to the appellants. The learned Sessions Judge passed the order after due consideration of the facts and circumstances of the case, in particular, the two dying declarations, one recorded in the presence of the parents of the deceased and the statements of the members of the Women Cell who had dealt with the case when on 15th July, 2006, the deceased had left the house with intention to commit suicide and therefore, it cannot be said that the judicial discretion exercised in granting anticipatory bail was perverse or erroneous, warranting interference by the High Court. The order passed by the Sessions Judge was supported by reasons to the extent required for exercise of judicial discretion in the matter of grant of bail. It may be true that some of the circumstances, noticed by the High Court in the impugned order, viz., no reference to lantern in the spot panchnama or the necessity of cleaning the lantern at 4 p.m. and/or availability of an inverter in the house etc., could have persuaded the Sessions Judge to take a different view but it cannot be said that the factors which weighed with the Sessions Judge in granting bail were irrelevant to the issue before him, rendering the order as perverse. Moreover, merely because the High Court had a different view on same set of material, which had been taken into consideration by the Sessions Judge, in our view, was not a valid ground to label the order passed by the Sessions Judge as perverse.
It also appears to us that the High Court has overlooked the distinction of factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted. In Dolat Ram & Ors. Vs. State of Haryana, while dealing with a similar situation where the High Court had cancelled the anticipatory bail granted by the Sessions Judge in a dowry death case, this Court had observed that rejection of bail in a non- bailable case at the initial stage and the cancellation of bail had to be considered or dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted, which, in our opinion, were missing in the instant case. Nothing was brought to our notice from which it could be inferred that the appellants have not co-operated in the investigations or have, in any manner, abused the concession of bail granted to them. As a matter of fact, Mr. Naphade, learned senior counsel representing the State, stated that after grant of anticipatory bail to the appellants, no investigation in the case has been conducted.
For the foregoing reasons, in our judgment, the impugned order setting aside the anticipatory bail granted to the appellants by the learned Additional Sessions Judge, cannot be sustained. Accordingly, the appeals are allowed; impugned order is set aside and the order dated 18th December, 2007 passed by the Additional Sessions Judge confirming the ad-interim anticipatory bail to the appellants, is restored. It goes without saying that nothing said by the High Court or by us hereinabove shall be construed as expression of any opinion on the merits of the case.
Both the appeals stand disposed of, accordingly.
..................................J. (D.K. JAIN)
..................................J. (R.M. LODHA)
NEW DELHI;
JULY 10, 2009.
 
 
05/11/1976
, , , ,
 
Subject
Defence and Internal Security of India Rules,  1971--r. 184--If supersedes S. 438. Cr. P.C. 1973.
 
Head Notes
                    Section  438  of the Code of  Criminal  Procedure, 1973 provides that when any person has reason to believe that  he may be arrested on an accusation of having committed a non- bailable  offence,  he may apply to the High  Court or  the Court  of Session for a direction under this Section. Rule 184 of the Rules made under Defence and Internal Security of India  Act, 1971 enacts that notwithstanding  anything contained in the Code of Criminal Procedure, 1898, no  person accused or  convicted of a contravention of  the  Rules  or orders made thereunder shall, if in custody, be released on bail or on his own bond unless (a) the prosecution has been given  an  opportunity to oppose the  application  for such release and (b) where the prosecution opposes the  application  and the contravention is of any such provision of the Rules or orders made thereunder as the Central Government or the State Government may, by notified order specify in this behalf, the Court is satisfied that there  are  reasonable grounds for believing that he is not guilty of such  contravention.
                    A  Food Inspector raided the shop of the appellant, who was  a merchant dealing in kiryana goods and kerosene  oil etc.,  and  seized his account books. Apprehending  that  he might  be arrested on a charge of non-bailable offence  for contravention of the provisions of the Defence and  Internal
Security  of  India  Act and the Rules, the  appellant  approached  the Sessions Judge for an anticipatory bail  under s.  438 of the Code of Criminal Procedure, 1973.   The Sessions  Judge rejected the application. Dismissing  his appeal, the High Court held that the express provisions of  r. 184 of the Rules superseded s. 438 of the Code in so far  as offences set out in r. 184 were concerned.
Allowing  the  appeal  and remanding the case  to  the High Court:
                HELD: (P. N. Bhagwati and A.C. Gupta,JJ.)
                    Section 438 and r. 184 operate at different stages, one prior  to arrest.and the other after arrest and there is  no overlapping between these two provisions. Rule 184 does not stand  in  the way of a Court of Sessions or  a High  Court granting anticipatory bail under s. 438.  [57G]
                    1.        The term 'anticipatory bail' is a misnomer.  It is not  as if the bail is presently granted by the  court  in anticipation of arrest. When the court grants anticipatory bail it makes an order that in the event of arrest a  person shall  be  released on bail. This somewhat  extraordinary power is exercised only in exceptional cases and is entrusted to the higher echelons of the judicial service namely the court of Sessions and the High Court. [55H]
                    2. Rule 184 postulates the existence of power in the court under the Code and seeks to place a curb on its exercise  by  providing that a person accused  or  convicted  of contravention of any rule or order, if in custody, shall not be released on bail unless the conditions mentioned in the rule  are satisfied.   Rule 184 does not lay down a self-contained code for grant of bail. 1t cannot be construed as displacing  altogether the provisions of the Code in regard to bail.  The provisions  of the Code must be read alongwith r.  184  and full  effect must be given to them except in so far as they are  by reason of the non-obstante clause overridden  by  r. 184.  [57B-C]
                    An application under s. 438 is an application on  an apprehension of arrest. On such an application, the  direction that may be given under s. 438 is that in the event  of his  arrest the applicant shall be released on bail.
                 Section 438 of the Code has not been repealed by r. 184 of  the Rules, but both have to be read harmoniously. Rule 184  is only supplemental to 8. 438 and contains  guidelines which have to be followed by the Court in passing orders for anticipatory  bail in relation to cases covered by  r.184. [70A]
                    1.        (a)  Section  438 of the Cede  is  an  extraordinary remedy and  should be resorted to only in special cases. [70C]
                              (b) Section 438 applies only to non-bailable  offences. Anticipatory   bail being an extraordinary remedy  available in  special  cases,  this power has been  conferred  on  the higher echelons of judicial service, namely, the  Court  of Sessions  or the High Court.  What the section contemplates is  not anticipatory bail but merely an order  releasing  an accused on bail in the event of his arrest. There can be  no question  of  bail  unless a person is under  detention  or custody. The object of s. 438 is that the moment a person is arrested,  if  he  had already obtained an  order  from the Sessions  Judge  or  the High Court, he would be  released immediately  without having to undergo the rigours of jail even for a few days.  [63B-D]
                    2. (a) While interpreting statutes, the Court must infer repeal                of a former statute by the latter only if it causes inconvenience or where it is couched in negative terms. The legislature does not intend to keep contradictory enactments on the statute book and, therefore, a construction should be accepted which offers an escape from it.  [66A-C]  Aswini  Kumar Ghosh and Anr. v. Arabinda Bose  and Anr. [1953] S.C.R. 1 referred to.
                    2. (b) If the intention of r. 184 were to override the provisions  of s 438, then the Legislature should  have expressly stated that the provisions of s. 438 shall not apply to offences contemplated by r. 184.  Therefore, the Legislature in  its wisdom left it to the Court to bring  about  a harmonious construction of the two statutes so that the two may work and stand together.  [65F-G]
 Northern  India  Cateres Pvt. Ltd. & Anr.  v.  State  of Punjab and Anr. [1967] 3 S.C.R. 399 followed.
                    3. (a) Section 438 does not contain unguided or  uncanalised power to pass an order for anticipatory bail; but such an order being of an exceptional type can only be passed if, apart  from the conditions mentioned in s. 437. there  is  a special case for passing the order.  The words 'for a direction  under this section' and 'Court may, if it thinks fit, direct' clearly show that the Court has to be guided  by  a large number of considerations, including those mentioned in s.  437. When a Court is dealing with offences contemplated by  r. 184it is obvious that though the offences  are not punishable  with  death or imprisonment for life  so  as  to attract the provisions of s. 437, the conditions laid down by  r. 184 would have to be complied with before an  order under s. 438 could be passed. [67A-B]  In re V. Bhuvaraha Iyengar, A.I.R. [1942] Mad. 221, 223, In  re Surajlal Harilal Majumdar & others, A.I.R. 1943 Bom 82,  and Saligram Singh & Ors. v. Emperor, AIR 1945 Pat.  69 distinguished.
                    (b) The scope of r. 184. is wider than that of  s.  438 inasmuch  as  while s. 438 can be invoked only in cases  of non-bailable offences and not in cases of bailable offences, r. 184 is applied not only to non-bailable offences but also to  bailable  offences and, therefore, the  conditions mentioned in r. 184, would have to be impliedly imported into s.  436 which deals with orders for bail regarding  bailable offences. [69D]
 
09/04/1980
1980 AIR 1632, 1980( 3  )SCR 383, 1980( 2  )SCC 565, ,
 
Subject
     Bail-Anticipatory Bail-Section  438 of  the  Code  of Criminal Procedure  Code, 1973       (Act 2    of 1974),  Scope of Judicial   balancing of personal liberty and the investigational powers of the Police, explained.
 
Head Notes
     The appellant  herein, Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab.  Grave allegations  of  political corruption  were  made against   him and others  whereupon applications were  filed in  the High  Court of Punjab and Haryana under  section 438  of the  Criminal Procedure Code, praying that  the appellants  be directed  to be released on bail, in the event of their arrest on the aforesaid charges.
Considering the                importance of the matter, a learned single Judge referred the applications  to a Full Bench, which by its judgment dated September, 13, 1977 dismissed them, after summarising,  what   according to  it is  the true legal position, of  s. 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) thus:
                  (1)          The  power  under  Section  438,  Criminal Procedure  Code, is  of  an  extra-ordinary      character and  must be exercised sparingly in exceptional cases only.
                  (2)        Neither Section                438 nor any other provision of the  Code authorizes the grant of blanket anticipatory  bail for offences   not yet committed or  with regard  to accusations not so far levelled.
                  (3)        The said power is not unguided or uncanalised but  all the  limitations  imposed  in the       preceding Section  437, are  implicit therein and must be read into Section 438.
                  (4)        In addition  to the limitations mentioned Section 437,  the petitioner  must make out special case for the exercise of the power to grant anticipatory bail.
                  (5)  Where a legitimate case for the remand of the offender to  the police custody under Section 167(2) can  be made  out by the investigating agency  or   a  reasonable  claim  to  secure incriminating  material  from information  likely to be received from the offender under Section 27  of the  Evidence Act can be made out, the power under  Section 438 should not be exercised.
                  (6)        The discretion   under Section  438 cannot be  exercised with  regard to offences punishable  with death  or imprisonment  for life  unless the Court  at that  very stage  is  satisfied
 that such  a charge  appears to  be false  or  groundless.
                  (7)        The larger  interest of the public and State  demand that  in serious cases like  economic offences involving  blatant corruption at the higher rungs  of the  executive and political power, the discretion under  Section 438  of the Code should not be exercised; and
                  (8)  Mere general allegations of mala fides in the  petition are  inadequate. The  court must  besatisfied on  materials before  it  that the allegations of mala fides are substantial and the  accusationappears  to  be  false and groundless.
The argument  that the appellants were men of substance and position who  were hardly  likely to abscond and  would  be prepared willingly  to face  trial was  rejected by the Full Bench with  the observation  that  to accord differential treatment to  the appellants on account of their status will amount to negation of the concept of equality before the law and that  it could  hardly be  contended that  every man  of status, who  was intended  to be charged with serious crimes including the one under section 409 was punishable with life imprisonment, "was  entitled to  knock at  the door  of  the Court for anticipatory bail". The possession of high status, according to  the Full Bench, is  not only  an  irrelevant consideration for  granting anticipatory  bail, but  is,  if anything, an  aggravating circumstance. Hence the appeals by special leave.
     The appellants  contended: (a)  The power conferred by section 438  to grant  anticipatory bail  is "not limited to the contigencies"  summarised by  the High  Court;  (b)  The power to  grant anticipatory  bail ought  to be left to the discretion of  the Court  concerned, depending on the facts and circumstances  of each  particular case;  (c) Since the denial of  bail amounts  to deprivation of personal liberty; Courts should lean against  the imposition  of             unnecessary restrictions on  the scope  of Section 438,  when  no such restrictions are  imposed by the legislature in the terms of that section (d) Section 438 is a procedural provision which is concerned  with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail  and who  must be  presumed to  be innocent.  The validity of that section must accordingly be examined by the test of fairness and which is implicit in Article 21. Imposition  of an unfair or unreasonable limitation would be  violative of  Article  21 irrespective of  whether it  is imposed by legislation or by judicial decision.  Allowing the appeals in part, the Court,
     HELD: 1. The society has a vital stake in both of these interests namely,  personal liberty  and the investigational power of the police.  The  Court's  task  is  how  best  to balance these  interests  while       determining  the  scope  of section 438 of the Code of Criminal Procedure, 1973. [393 C-D]
     2. The  High Court and the  Court of Session should be left to exercise their  jurisdiction under section 438 by a wise and careful use of their discretion which by  their      long  training and  experience,  they are ideally suited to do. The ends  of justice  will be better served by  trusting these  courts to  act objectively and in consonance with principles governing the grant of bail. [417 B-D]
     3. Section 438(1) of  the Code  lays down a condition  which has  to be  satisfied before  anticipatory bail can be granted.The  applicant must  show that he has  "reason  to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable  grounds. Mere  'fear' is not  'belief',  for which reason it is not enough for the applicant to show that he has                some sort  of a vague apprehension that some one is going to  make an  accusation against  him, in pursuance of
which he may be arrested. The grounds on which the belief of the applicant  is based that he  may be arrested for a non-bailable offence,  must be  capable of being examined by the court objectively,  because it is then alone that the court can determine  whether the  applicant has  reason to believe
that he may be so  arrested. Section  438(1),  therefore, cannot                be  invoked  on the  basis  of  vague and general  allegations, as  if to arm oneself  in perpetuity against a possible arrest.  Otherwise, the  number of applications for anticipatory bail  will be  as large,  as, at  any rate, the adult populace.  Anticipatory bail is a device to secure the individual's liberty;  it  is  neither a  passport  to the commission of  crimes nor a shield against any and all kinds of accusation, likely or unlikely. [417 E-H, 418 A]
     Secondly, if  an application  for anticipatory  bail is made to the High Court or the Court of Session it must apply its own mind to  the question and decide whether a case has been made  out for granting such relief. It cannot leave the question for  the decision of the Magistrate concerned under Section 437  of the  Code, as  and when  an occasion arises. Such a course will  defeat the very object of Section 438.
[418 A-B]
     Thirdly, the  filing of  a First  Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence  of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. [418 B-C]
     Fourthly, anticipatory  bail can  be granted even after an F.I.R.  is filed,  so long  as the applicant has not been arrested. [418 C]
     Fifthly,  the  provisions of  Section  438  cannot  be invoked after  the arrest  of  the  accused.  The  grant  of "anticipatory bail"  to an  accused  who  is  under  arrest involves a  contradiction in terms, in so far as the offence or offences  for which he is arrested, are concerned. After arrest, the  accused must  seek his remedy under Section 437 or Section  439 of  the Code,  if he wants to be released on bail in         respect of  the offence or offences for which he is arrested. [418 C-E]
 
     4. However,  a "blanket  order"  of  anticipatory bail should not  generally be  passed. This flows from  the very language of the section which requires the appellant to show that he has "reason  to believe" that he may be arrested. A belief can  be said to be founded on reasonable grounds only if there  is something tangible to  go by  on the  basis of which it  can be said that the applicant's apprehension that he may be arrested  is genuine.  That is  why, normally,  a direction should  not issue  under  Section  438(1)  to the effect that the applicant shall  be  released  on bail "whenever arrested  for which ever offence whatsoever". That is what is meant by a 'blanket order' of anticipatory bail, an order  which serves as a blanket to cover or protect any and every kind of  allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information  can possibly  be bad. The rationale  of  a direction  under   Section  438(1)  is the  belief  of the applicant founded  on reasonable  grounds  that he  may  be arrested for  a non-bailable  offence. It  is unrealistic to expect the applicant to  draw up  his application  with the meticulousness of a pleading in a civil case and such is not requirement of the section.  But specific  events and facts must be disclosed by  the applicant  in order to enable the court to  judge of  the reasonableness of his             belief, the existence of  which is the sine  qua non of the exercise of power conferred by the section. [418 E-H, 419 A]
          A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind  of offence  is alleged  to have been committed by the applicant  and when,  an order of bail which comprehends allegedly unlawful activity of any descripttion whatsoever, will prevent the police from arresting the applicant even if the commits,  say, a  murder in the presence of the public. Such an order can  then become a charter of lawlessness and weapon to  stifle prompt  Investigation into  offences which could not  possibly be predicated when the order was passed.Therefore, the court which  grants anticipatory  bail must take care  to specify  the offence or offences in respect of which alone  the order will be  effective. The power should not be exercised in a vacuum. [419 C-E]
     5. An  order of bail can be passed under section 438(1) of the Code without  notice to the Public Prosecutor. But notice should  issue to the public  prosecutor  or  the Government Advocate  forthwith and the  question  of bail should be  re-examined in  the  light of  the  respective contentions of the parties.  The ad-interim  order too must conform to  the requirements  of the  section  and  suitable conditions should  be imposed  on the applicant even at that stage. [419 E-F]
     6. Equally the operation of  an order  passed  under section 438(1) need not  necessarily be limited in point of time. The Court may,  if there are reasons  for doing so, limit the  operation of      the order  to a  short period until after the  filing of  an F.I.R.  in respect  of the  matter covered by  the order. The applicant  may in  such cases be directed to obtain an order of bail under Section 437 or 439  of theCode within  a reasonably  short period  after  the filing of the F.I.R.  as aforesaid. But this need not be followed as an invariable rule. The  normal rule should be not to limit the operation of the order in relation to a period of time. [419 F-H]
     7. Bail  is  basically  release  from  restraint, more particularly release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by  the police, and speaking generally, an order of bail gives  back to  the accused  that freedom on condition that he will appear to take his trial. Personal recognizance suretyship bonds  and such other modalities are the means by which an  assurance is secured from the accused that though he has been released on bail, he will present himself as the trial of  offence or offences of which he is charged and for which he was arrested. [397 E-G]
     The distinction  between an  ordinary order of bail and an order  of anticipatory bail is that whereas the former is granted after  arrest and  therefore means  release from the custody of the police, the latter is granted in anticipation of arrest  and is  therefore effective at the very moment of arrest. Police custody is an  inevitable  concomitant  of arrest for  non-bailable offences.  An order of anticipatory bail constitutes, so to  say, an  insurance against  police custody following  upon arrest for offence  or offences  in respect of which the order is issued. In other words, unlike a post-arrest  order of bail, it  is a  pre-arrest  legal process which  directs that if the person in whose favour it is issued  is  thereafter  arrested  on  the  accusation  in respect of  which the  direction  is  issued,  he  shall  be released on  bail. Section  46(1) of  the Code of  Criminal Procedure which deals with  how arrests  are  to  be  made, provides that  in making  the arrest  the police  officer or other person  making the  arrest "shall  actually  touch  or confine the  body of the person to be arrested, unless there be a submission to  the  custody  by  word  or action".  A direction  under  section  438  is  intended  to confer conditional immunity  from this 'touch' or confinement. [397 G-H. 398 A-B]
    
     The legislature conferred a wide discretion on the High Court and  the Court  of Session  to grant anticipatory bail because  it  evidently felt,  firstly, that  it  would  be difficult  to   enumerate   the                 conditions   under   which anticipatory bail  should  or  should  not  be granted and secondly; because  the intention  was to  allow the  higher courts in  the echelon a somewhat free hand in the grant of relief in  the nature  of anticipatory bail. That  is why, departing from the terms  of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on  bail. Sub-section (2)  of Section  438  is  a further and  clearer manifestation  of the  same legislative intent to  confer  a  wide  discretionary  power  to  grant anticipatory bail.  It provides that the  High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail,  "may include  such conditions  in such directions in the light of the facts of the particular case, as it  may think fit" including the conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent  can best  be found in the language which the  legislature   uses.  Ambiguities can  undoubtedly  be resolved by resort to extraneous aids but words, as wide and explicit as  have been used in  Section 438,  must be given their full  effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory  bail is  sought  when  there  is  a mere apprehension of arrest on the accusation that the applicant has committed  a non-bailable  offence. A person who has yet to lose his freedom  by being arrested asks for freedom in the event  of arrest.  That is the stage  at  which  it  is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the  stage at  which anticipatory       bail  is  generally sought brings about its  striking  dissimilarity  with  the situation  in  which  a  person who  is  arrested  for  the commission of  a non-bailable offences asks for bail. In the latter situation,  adequate data  is available to the Court, or can be called  for by  it, in the light of which it can grant or  refuse relief  and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437. [404 A-G]
     10. The amplitude of judicial discretion which is given to the   High Court and the Court of Sessions, to impose such conditions as they may think fit while granting anticipatory bail, should  not be cut down, by a process of construction, by reading  into the  statute conditions which are not to be found therein like those evolved by the High Court. The High Court and  the Court  of Session to whom the application for anticipatory bail  is made  ought to  be left  free  in the exercise of their judicial discretion to grant bail if they consider it  fit so  to do  on  the  particular  facts and circumstances of the case and on such conditions as the case may warrant.  Similarly, they  must be left free  to refuse bail if the  circumstances  of the  case  so       warrant,  on considerations similar to those mentioned in Section 437 or which are  generally considered to be relevant under Section 439 of the Code. [405 B-D]
     Generalisations on matters which rest on discretion and the attempt  to discover  formulae of  universal application when facts  are bound  to differ from case to case frustrate the very  purpose of conferring discretion. No two cases are alike on  facts and  therefore, Courts have to be allowed a
Little free  play in the  joints if the  conferment  of discretionary power  is to  be meaningful.  There is no risk involved in entrusting a  wide discretion  to the  Court of Session and  the High  Court in granting anticipatory bail because,  firstly these  are higher  courts manned  by experienced persons,  secondly their order are not final but are open  to appellate or revisional scrutiny and above all because, discretion  has always to be exercised by  courts judicially and not according  to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial  discretion has to be free enough to be able to  take these  possibilities in its stride and to meet these challenges. [405 D-G] Hyman and Anr. v. Rose, 1912 A.C. 623; referred to
     11. Judges  have to  decide cases as they  come before them, mindful  of the  need to               keep passions and prejudices out of their decisions.  And it  will be  strange  if,  by employing judicial artifices and techniques, this Court cuts down the  discretion so wisely conferred upon the Courts, by devising a  formula which  will confine the power  to grant anticipatory bail  within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed  in the  context of emerging concerns as and when  it arises.  Therefore, even  if this Court were to frame a  'Code for  the grant  of anticipatory bail', which really is  the business of the legislature, it can at best furnish broad  guidelines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the  fact that  the question  is inherently  of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question  to the  discretion of the Court, by providing that it  may grant  bail "if it thinks fit". The concern the Courts generally  is to preserve their discretion  without meaning to  abuse it.  It  will be  strange  if  the  Court exhibits concern  to stultify  the discretion conferred upon the Courts by law. [406 D-H]
     Discretion, therefore,  ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to                correction by the higher  courts.  The  safety  of discretionary power  lies  in  this  twin  protection  which provides a safeguard against its abuse. [407 F-G]
     12. It  is true that the functions of judiciary and the police are  in a sense complementary and not overlapping. An order of  anticipatory bail does not in any way, directly or indirectly,  take  away             from  the  police  their  right  to investigate into  charges made or to  be made against the person released   on  bail.  In  fact,  two  of  the  usual conditions incorporated in a direction issued under section 438(1) are  those recommended in Sub-section (2)(i) and (ii) which require the applicant  to co-operate  with the police and to assure that  he shall  not tamper with the witnesses during and  after the investigation. While  granting relief under Section  438(1), appropriate conditions can be imposed under Section  438(2), so as  to  ensure  an  uninterrupted investigation. One of such conditions can even be that in the event of the police making out  a case of a likely discovery under Section 27 of the Evidence  Act, the person released on  bail  shall  be liable to  be taken  in police custody for facilitating the discovery. Besides,  if and when the occasion arises, it may be possible  for the prosecution to  claim the benefit  of Section 27  of the  Evidence Act in regard to a discovery of facts made  in pursuance of information supplied by a person released on bail. [409 D, 410 A-D] King Emperor v. Khwaja Nazir Ahmed, 71 I.A., 203, State of U.P.  v. Deoman  Upadhyaya, [1961]  1 S.C.R.  p. 14 @ 26; referred to.
     13. In Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR  52, this Court was considering whether the provisions of Section 438 relating to anticipatory bail stand overruled or repealed  by virtue of  Rule  184  of  the Defence and Internal Security  of India  Rules, 1971 or whether both the provisions can by rule of harmonious interpretion,  exist side by side. It was in  that context that it was observed that "As  section 438  immediately follows Section 437 which is the main provision for bail  in respect of non-bailable offences, it  is manifest  that the conditions imposed by s. 437(1) are implicitly contained in Section 438 of the Code". These  observations regarding the  nature  of  the  power conferred by  section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into section 438 cannot, therefore be treated as the ratio of the decision. [413 C-D, E]
     The power conferred by  section 438  is of  an "extra ordinary" character  only  in  the  sense  that it  is not ordinarily resorted  to like the power conferred by sections 437 and 439. [413 E-F] Bal Chand Jain v. State of  M.P., [1977] 2 S.C.R. 52, distinguished.
     14. Since denial of  bail amounts  to  deprivation  of personal  liberty,   the  Court should  lean against  the imposition of unnecessary  restrictions  on  the  scope  of section 438,  especially when no such restrictions have been imposed by  the legislature  in the  terms of  that section. Section 438  is a  procedural provision which is  concerned with the personal liberty of the individual, who is entitled to the benefit of  the presumption of innocence since he is not, on the date  of his application for anticipatory bail, convicted of  the offence in respect of which he seeks bail.  An over-generous  infusion  of constraints  and  conditions which are  not to  be found  in Section  438 can  make  its provisions constitutionally vulnerable since  the right  to personal freedom cannot be made to depend on compliance with unreasonable restrictions. [413 F-H, 414 A] Maneka Gandhi  v. Union  of India, [1978] 1 S.C.C. 248; applied.
     15. In  regard to anticipatory bail,  if the  proposed accusation appears  to stem  not from  motives of furthering the ends of justice  but from         some ulterior  motive, the object being to injure and humiliate the applicant by having him arrested a direction for the release of the applicant on bail in the event of his arrest would generally, be made. On the  other hand,  if  it  appears  likely  considering the
antecedents of the applicant, that taking advantage of the order of  anticipatory bail  he will flee from justice, such an order would not  be made.  But  the converse  of  these propositions is not necessarily  true. That  is to  say  it cannot be  laid down as an inexorable rule that anticipatory bail  cannot  be  granted  unless  the proposed  accusation appears to be actuated by mala fides; and, equally,  that anticipatory  bail must  be granted  if there is  no fear that the applicant will abscond. There are several other  considerations, too numerous to enumerate the combined effect of which  must weigh  with the  court while granting or  rejecting anticipatory  bail. The               nature and seriousness of the proposed  charges, the  context  of the events likely  to lead to the making of  the charges,  a reasonable possibility of the applicant's presence not being secured at  the  trial,  a  reasonable  apprehension that  witnesses will be tampered with and "the larger interests of the public  or the  state" are some of the  considerations which the  court has  to keep  in  mind while deciding  an application for anticipatory bail. [415 G-H, 416 A-C] State v.  Captain Jagjit  Singh, [1962]  3 S.C.R. 622, followed.
 
 
21/02/2005
2005 AIR 1057, 2005(2   )SCR188 , 2005(4   )SCC303 , 2005(2   )SCALE212 , 2005(2   )JT548
 
Subject
Code of Criminal Procedure, 1973 :
 
Sections 438-Protection under-Scope of-Complaint under S.406, 467, 468, 471 and 420 IPC-Prayer by accused for protection in terms of S.438-On facts, held: the prayer was rightly rejected by High Court.
 
Section 438-Application under-Held: Legality of proposed arrest cannot be gone into in such an application-Interim order restraining arrest, if passed while dealing with an application under S.438, will amount to interference in the investigation, which cannot be done under S.438.
 
Sections 438 and 439-Distinction between-Discussed.
 
Complaint was lodged alleging commission of various offences more particularly those under Sections 406, 467, 468, 471 and 420 IPC against the appellant and five others. Prayer was made to the Judicial Magistrate for taking action in terms of Section 156(3) CrPC who directed the officer-in-charge of the concerned Police Station to investigate after taking the petition of complaint as FIR and to submit report before the Sub-Divisional Judicial Magistrate (SDJM). The accused filed application under Section 438 CrPC before High Court alleging that they were victims of a conspiracy. High Court declined to accept the prayer made by appellant-accused to extend the protection available under Section 438 CrPC . Hence the present appeal.
 
Head Notes
Disposing of the appeal, the Court
 
HELD : 1. The facility which Section 438 of the Code gives is generally referred to as `anticipatory bail'. The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. [193-F, H; 194-A] Gur Baksh Singh v. State of Punjab, [1980] 2 SCC 565, relied on. Balachand Jain v. State of Madhya Pradesh, AIR (1977) SC 366, referred to.
 
2. The power exercisable under Section 438 CrPC is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under Section 438. The power being of important nature it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail. [194-D-F]
 
3.1. Sections 438 and 439 operate in different fields. It was held in Nirmal Jeet Kaur's case and Sunita Devi's case that for making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin's case the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be rendered meaningless and redundant. [194-F; 197-A-B] Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR (1996) SC 1042 and Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors., AIR (1980) SC 785, relied on.
K.L. Verma v. State and Anr., (1996) 7 SCALE 20; Nirmal Jeet Kaur v. State of M.P. and Anr., [2004] 7 SCC 558 and Sunita Devi v. State of Bihar and Anr., Criminal Appeal arising out of SLP (Crl.) No. 4601 of 2003 disposed of by Supreme Court on 6.12.2004, referred to.
 
3.2. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin's case the result would be clear by-passing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies upto higher Courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. [197-C-D]
 
4.1. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has `reason to believe' that he may be arrested in a non-bailable offence. Use of the expression `reason to believe' shows that the applicant may be arrested must be founded on reasonable grounds. Mere "fear" is not `belief' for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. [197-D-F]
 
4.2. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. Normally a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such `blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. [197-G-H; 198-A-B]
 
5. An application under Section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the concerned Court either under Section 437 or Section 439 of the Code. In the very nature of the direction which the Court can issue under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code the Court cannot restrain arrest. [198-E-F]
 
6. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. [199-A-B]
 
7. While upholding the rejection of the prayer in terms of Section 438 of the Code, no opinion is expressed on merits of the case. When the bail application is moved in terms of Section 439 of the Code before the concerned Court the same shall be considered in its proper perspective in accordance with law. The SDJM would do well to dispose it of on the day it is filed. In case the prayer for bail is rejected and an application for bail is filed before the District and Sessions Judge, the said Court would do well to dispose of the application as early as practicable. If it is filed at a later date, the District and Sessions Judge would make an effort to dispose it of within three days of its filing. [199-C-E]
Shivaji @ Dadya Shankar Alhat .. Appellant Vs. The State of Maharashtra                           ..Respondent
September 5, 2008
(Dr. ARIJIT PASAYAT)  ( Dr. MUKUNDAKAM SHARMA)                                 
 
Dr. ARIJIT PASAYAT, J.
A large number of cases in recent times coming before this Court involving rape and murder of young girls, is a matter of concern. In the instant case victim was about nine years of age who was the victim of s*xual assault and animal lust of the accused-appellant; she was not only raped but was murdered by the accused appellant.
The Learned Second Additional Judge, Pune tried the appellant for offences punishable under Sections 302 and Section 376 (2)(f) of the Indian Penal Code, 1860 and the trial court found the appellant guilty for the aforesaid offences and he was sentenced to death for the offence of murder and in respect of the other offence sentence to suffer rigorous imprisonment for ten years and to pay fine with default stipulation. Appellant questioned the judgment before the Bombay High Court which heard the same alongwith Confirmation Case which was referred to the High Court as required under Section 366 of the Code of Criminal Procedure, 1973 (in short the `Code'), for confirmation of death sentence. The appeals were heard together, the reference was accepted but the appeal filed by the accused was dismissed.
The Prosecution version
Shivaji-appellant (hereinafter referred to as the `accused') is an educated person was serving as teacher at Pune in the year 1986. He was staying with his mother and sister near the house of Hemlata (hereinafter referred to as the `deceased'), a tiny girl who had not seen ten summers in life. The accused is a married man and has three children. His wife and children were not residing with him. The accused was known to the deceased and her family. The deceased and her family used to sometime give him bread. The deceased was studying in 5th standard. She has two sisters (PW 8). Her mother (PW 2) was working as a maid. All of them were staying with their grandmother (PW 7). The father of the deceased was not staying with them on account of strained relationship between him and the mother of deceased. The incident in question occurred on 14th January, 2002. On that day there was festival of Makarsankranti. At about 11.30 a.m., the deceased and her sister had gone to the borewell to fetch water. The accused was sitting on the slab, where construction work was going on. The accused told the deceased that he would give her fuel wood from the hill. Thereafter they came to deceased's house. The deceased kept the pitcher in the house and she went alongwith the accused towards the hill. Thereafter the deceased did not return home. The mother came home at about 4.30 P.M. She was told that her daughter had gone with the accused and had not returned. They started searching for the deceased but could not find her. On the same day, the grandmother of the deceased gave a missing complaint to the police in which she stated that the deceased had left the house with the accused and had not come back. Search was going on to find out the deceased.  It appears that the mother of deceased got to know from one Sakinabai that dead body of her daughter was lying on hill. She also gave information to the police on 15th January, 2002 regarding missing of her daughter. In this complaint she also stated that the deceased had left the house alongwith the accused. After seeing the dead body of her daughter at Hospital, the mother reported the matter to the police. Her complaint came to be recorded in which she stated that her daughter had left with the accused on 14.1.2002.She specifically stated that she was convinced that, it is the accused who had raped her daughter and assaulted her on her abdomen with a sharp edged weapon, strangulated her with a rope and murdered her. On the basis of this FIR investigation started. The accused was not traceable. He could be arrested only on 16th January, 2002. He was found hiding in the sugarcane crop. After completion of the investigation the accused came to be charged as aforesaid. Since   the   accused abjured guilt trial was held. Seventeen witnesses were examined to further the prosecution version.
 
Prosecution examined (PW 2), the mother of the deceased and (PW 7), grandmother of the
deceased. (PW 8) the sister of the deceased, (PW 9) and (PW 6) were examined to establish the prosecution case that the accused and the deceased were last seen together on 14th January, 2002 at about 11.30 a.m. going towards Hill.      
The accused pleaded innocence and false implication. His case was that in fact at the relevant point of time he was not present in the village and has gone to his daughter's house, then to his sister's house.
                Learned trial court found the evidence cogent and found the accused guilty and imposed the sentence. The appeal before the High Court was dismissed and the reference made under Section 366 IPC was confirmed.
In support of the appeal learned counsel for the appellant submitted that the case at hand is based on circumstantial evidence and the circumstances do not warrant conclusion of guilt of the accused. Since the conviction was based on circumstantial evidence, no death sentence should have been awarded and in any event this is not a case where death sentence should have been imposed.
The deceased was thus a helpless poor girl of tender age. She had no protection of the father. She was, therefore, a vulnerable girl.
                When the mother of deceased came back, her mother told her that the deceased had gone to
bring fuel wood along with the accused. Since the deceased did not come back they started searching for her. The grandmother of the deceased gave a missing complaint to police on 14.1.2002.  
So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows:
            "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence toconclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted as follows:
          "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration". (See also Bodh Raj v. State of J&K (2002(8) SCC 45).)"
A similar view was also taken in Jaswant Gir v. State of  Punjab [2005(12) SCC 438], Kusuma Ankama Rao v State of A.P. (2008(9) SCALE 652) and in Manivel & Ors. v. State of Tamil Nadu ( 2008(5) Supreme 577).
Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstancesbe proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put   it  differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of  Karnataka  (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
 
We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
           "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent  with his innocence....".
In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
 
           "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
           (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
           (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
           (4) the circumstantial evidence in order to sustain conviction must be complete and  incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.
Sir   Alfred   Wills   in    his    admirable   book   "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases,whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon  any other   reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
          (1) the circumstances from which the conclusion of guilt is to be drawn should be fully   established. The circumstances concerned must or should and not may be established;
          (2) the facts so established should be consistent only with the hypothesis of the guilt
          of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
          (3) the circumstances should be of a conclusive nature and tendency;
          (4) they should exclude every possible hypothesis except the one to be proved; and
           (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
 
         In Damodar v. State of Karnataka [2000 SCC (Crl) 90] it was, inter alia, observed as follows:
           "From the evidence of PWs. 1,6,7 & 8 the prosection has satisfactorily established that the appellant was last seen with the deceased on 30.4.91. The appellant either in his Section 313 Cr.P.C. statement or by any other evidence has not established when and where he and the deceased parted company after being last seen."
Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence.The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep- seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence.   It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC 1463).
In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC220), this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The   imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.
Similar view has also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC 175). It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated.
These aspects have been elaborated in State of M.P. v. Munna Choubey [2005 (2) SCC 712].
In Machhi Singh v. State of Punjab [1983 (3) SCC 470] in para 38 the position was summed up as follows: (SCC p. 489)
"38. The following propositions emerge from Bachan Singh's case (supra):
               (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
                (ii) Before opting for the death penalty the circumstances of the `offender' also require to be taken into consideration along with   the   circumstances   of the `crime'.
               (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to  the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the     crime   and   all   the relevant circumstances.
               (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
               The position was again reiterated in Devender Pal Singh v. State of NCT of Delhi [2002 (5)SCC 234 ] : (SCC p. 271, para58)
          "58. From Bachan Singh 's case (supra) and Machhi Singh's case (supra) the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed:   
    The community may entertain such sentiment in the following circumstances:
              (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
             (2) When the murder is committed for a motive which evinces total depravity and     meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-`-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.     
            (3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of `bride burning' or `dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
            (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
            (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-`-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
                The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to do with the question of sentence as has been observed by this Court in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced. In the balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has no role to play. In fact in most of the cases where death sentence are awarded for rape and murder and the like, there is practically no scope for having an eye witness. They are not committed in the public view. But very nature of things in such cases, the available evidence is circumstantial evidence. If the said evidence has been found to be credible, cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating circumstance, would amount to consideration of an irrelevant aspect. The plea of learned Amicus Curiae that the conviction is based on circumstantial evidence and, therefore, the death sentence should not be awarded is clearly unsustainable.
The case at hand falls in the rarest of rare category. The circumstances highlighted above, establish the depraved acts of the accused, and they call for only one sentence, that is death sentence.
 
Source:

SRISHAILA.DHARANI (Advocate&consultant)     16 May 2014

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Showing posts with label 498AShow all posts
 

Saturday, 29 March 2014

Why To Change India When You can't Change Yourself......!!!

 

To All fighters, 

This is not an issue which has raised today,It's a chronicle issue which has crossed three decades.And non of any Men's NGO's, Govt. or Men's movement has changed these one sided law a bit also.
The reason is simple as lump sum40% of direct vote bank from women are intact.. No political party wants to interfere with this. The NCW, NCWDC, and all small and Big NGO's of woman along with big support of ministry of Woman and child welfare are with these biased law.

More than 10 lacs of lawyer's all over India is benefited by cognizable and Non bailable offense. And this 498A is the easiest of easiest case belonging to this section of IPC to extort money for Bail from the victims as well as fixed money from the petitioners who files these cases..
You would have heard the situations few years back when lawyers of all over India went for protest when time limit of non bailable section was considered to be reduced.

Apart from this the direct false FIR been launched by taking bribes. So,here you have to add the dirtiest citizens of India i.e the corrupt policemen too.

now you can understand where we are lacking.....

"It's not the matter of change rather than the matter to be changed.."

I already stated in my blog's article that these 498a has become a profession rather than a single section under IPC.

So, you can count the heads which are supporting these draconian law.

Shocked Naaaaaaaa,

Yes, that's true..!!

This is the reality of 498a.

But, how to change the worst?

where is the answer?

Do you have.....?

You will say yes.

But don't you think that answer which you have given has already been utilized.But what was the result?

A BIG NO......OOOOOOOOOOOO 


Though a big No has already been seen by ex fighters but there contribution is still alive.......which every coming generation is following.


Now,

If we go through this particular thread, I got 4 different views:

1. PIL

2. DHARNAS
3. SHARE THE KNOWLEDGE OF BIASED LAW ON EVERY SOCIAL MEDIA
4. PROETST?     but not specified what kind of Protest?

Dear fighters, I believe in action rather than imagination. I don't stick with future but always rest on present. See what you can do to pure the one ocean which has been polluted by the above gentle men's and that is our India.

Why we say India need change why can't we say we Indian need's change. That's because India is one and we Indians are more than 120 crores. We feel difficulty to change ourselves rather than changing one India and that also by mere words. What an illogical approach we have.


If one person think to change himself, automatically he is changing India but again action has to be there rather than mere words.
So, in this frivolous 498A too we have to change ourselves from an innocent husband to a fighter husband as well as a fighter friend to a fighter lawyer.
Because every sufferer ultimately becomes a saviour after so many pain and harassment.And such sufferer’s are real gold which glitters after getting the torturous heat by fire.

I request all, to Join ESIS and become a Fighter not only for themselves but for whole India.

Don't point fingers........Make a Punch
It's Time for Unity..........Have a crunch

Your's,

(ESIS)
 

Friday, 7 February 2014

Section 498A IPC has become a weapon for breaking families rather than for uniting them: AP HC

 

Do not jail accused in dowry cases, rules High Court

  DC | S.A. Ishaqui | 22nd Jan 2014

HyderabadIn a significant ruling, the AP High Court has directed the police not to arrest the accused involved in dowry harassment cases without the permission of the district superintendent of police or any other officer of equal rank in metropolitan cities.
The High Court directed the magistrates that no accused should be remanded to judicial custody mechanically in a routine manner.
While allowing a criminal petition by Syed Kaleemuallah Hussaini and three others seeking anticipatory bail in a dowry harassment case, Justice B. Chandra Kumar observed: “It is most unfortunate that Section 498A IPC has become a weapon for breaking families rather than for uniting them.”
“There cannot be any doubt that there is dowry menace in society. But at the same time, it is also a fact that certain marriages are performed without any dowry.
Due to ill advice or under the wrong impression that the husband may come to terms if a complaint is lodged under Section 498A IPC, complaints are being lodged with the police,” the judge added.
Next: Dowry plaint be examined: Judge
States: 
 
HyderabadIssuing certain guidelines to be followed by the investigation officers in dowry harassment cases, Justice B. Chandra Kumar observed that normally, no accused should be arrested on allegations of simple dowry harassment. 
If an arrest is necessary, the investigating officer should obtain permission.
He said that when an accused is produced before the magistrate, they should examine the matter judiciously and consider whether there are valid grounds for remanding the accused to judicial custody.
The judge said if arrest is not necessary, the police may complete the investigation and file a chargesheet without arresting the accused.
He also made it clear that in the case of dowry death, suspicious death and suicide or when the allegations are serious in nature, the police officer may arrest the accused and the intimation of arrest should be immediately sent to the concerned SP.
According to the instructions of the judge, no accused or witness should be unnecessarily called to the police station. In case their presence is required for enquiry, they should be sent back immediately after that.
There should not be any unnecessary harassment either to the relatives of the complainant or of the husband. A fair and dispassionate probe should be conducted. After completing investigation, it should be verified by an officer not below the rank of deputy superintendent of police.
The judge said, “During investigation, if the probing officer is satisfied that there is false implication of any person in the complaint, then he may delete the names of such persons from the chargesheet after obtaining necessary permissions from the SP or any other officer equivalent to that rank.”
“As soon as a complaint is received either from the wife alleging dowry harassment or from the husband that there is possibility of being implicated in a case of dowry harassment, then both the parties should be asked to undergo counselling with any experienced counselor or counsellors,” the judge maintained.
He directed that the report of the counsellors should be made a part of the report to be submitted to the court.
The judge also ruled that the SP, in consultation with the chairman, district legal services authority, prepare a panel of counselors and details of the panel, along with their addresses and phone numbers, should be made available at all police stations.
Senior cops should also ensure that the parties are not forced to come to any settlement in police stations against their wishes. “Advocates have to play their roles in trying to unite the families.
The welfare of the children should be given utmost importance,” he added. The judge directed the DGP to issue necessary instructions to the concerned authorities in this regard.

 

 

Saturday, 1 February 2014

10 MOST SOUGHT AFTER REASONS WHY WOMEN FILES FALSE DOWRY AND DOMESTIC VOILENCE CASES...!!

 



Here intentions are not to degrade the women or abuse them but her deeds are noticed at every false cases to just aware them that The world is watching them....!!

 

There would be number of reasons to file False dowry and domestic violence cases on Husband and his family..But The most 10 sought after reasons so far to settle the score are following:

 
1.      To Just keep your vengeance to next level(Fulfilling the ego to give a distinct height)
 
2.      To teach a lesson to your husband and family(Silly fights with her SIL and MIL which turns into false allegations and later to teach all family members a lesson)
 
 
3.      To make yourself happy for taking revenge.(Dreaming with her parents that one day she will be happy after filling false cases when husband and family doesn't listen what she say)
 
4.      To  send the husband and family to jail.(Same as above)
 
 
5.      To extort as 400 times more money than what was actual given to the groom side.(This is the worlds most profitable business without Tax)

6.      To marry your EX boyfriend.(Parents have forcefully married against her choice and BF had told her to go ahead in marrying that  rich fellow.So, that she should take divorce from that Bakra after collecting the legal Extortion amount and live happily ever after with her x BF)
 
 
7.      To get your career a rocket speed.( Generally in India women are proffered as housewives and this thought mostly goes against modern DIL who not even worried to drag husband and his family into false cases to fulfill her career).

8.      To Enlist your name in the NCERT book just like Nisha Sharma(Filling false cases of women harassment has become a fashion and an easy way to get limelight in media)
 
9.      To show yourself as Abla Naari and protest the husbands divorce.(Women are willingly made as Abla naaris just to show them as a most fragile creature on the earth to get sympathy.This false assumption even in this world heading towards 21st century doesn’t  justify the situation when a woman says that I am dependent on husband even though she is not happy with that man.This false practice is going on..)
 
10.  To make the 498A industry a Booming sector as this has a good incentive with promising career. (No sector gives such promising career in the way of getting life long maintenance  just like pension in Government jobs. Even The incentives are quite high that a woman can appeal to get such intensives Via other 5 modes.The height is that she will be given such accumulated incentives right from the day of filling if any.)
 
 
Written and Posted By ESIS
 

Monday, 13 January 2014

REAL 498A- A READY MADE BLOCKBUSTER MOVIE HITTING SINCE 1984 TO ALL OVER INDIA...!!!

 
No Husband wants to have a Wicked wife,No parents wants to have an ill Daughter in Law,No sister wants to have a Rowdy Sister in Law, No Brother wants to Have a cunning Sister in Law...But who knows the Girl you have chosen to be a part of your family and live happily ever after turns into nightmare due to the sudden change of scriptts written by the girls parents and her brothers and sisters. The girl dilutes in the written character so well that she undoubtedly turns to be next 498A women...

This 498A woman then plays many significant Role in the enhancement of financial growth within the corrupted society interlinked with the chain of pockets starting from Policemen-Lawyers-Bench Clerks-Judges-Wife-In-Laws-middlemen and whoever interested in these million dollars flourishing Racket since it has incorporated by Chapter XXA inserted by Act 46 of 1983, s. 2. 

These 498A women's also play's a very crucial Role in the awakening of NCRB which they are very much busy in finding and calculating all the years subtracting All cases lodged with Number of cases turned to be false.These Women's are highly sophisticated which are seen as the Bechari and Aabla-Naari who are so much victimized from the members of marital home that all Women organizations/ministry/State Authority/Media/Local citizens of whole India comes to protect them by crushing and cursing the innocent husband and his parents and relatives who are the real and actual victims of the ploy by these vilians.
Anyways the climax of this Real-498A -A movie end's with the Truth Triumphs .....!!!
But before that and on Top of that an Interesting Tragedy begins when these 498A women's cry in-front of judges that Please provide me maintenance and alimony and do send my husband to Jail but yes I want to live with him...just to get the sympathy from all.
The judges in Indian courts become only moot spectator's and watches episodes of family drama directed by girls parents and Brothers , produced By husbands who never gets return on his forced investment. The Lead character Played off course by wife and a guest appearance by Whole India who only sit idle to watch the protagonist of real 498A- A movie who get's the accolades from the Box office called our Indian Judiciary.
And lastly, These 498A a Ready made Legal Movie becomes a massive hit through out the country even crossing the 500Cr.+ worldwide within a day beating the Records of Dhoom-3 so often which has done after two weeks.

Written and Posted By (ESIS)


Some of the False 498A Trailer's link:

Man's ten-year dowry nightmare in jail finally ends | Mail Online

www.dailymail.co.uk/.../Mans-year-dowry-nightmare-jail-finally-ends.ht...
Mar 1, 2012 - Ten-year nightmare of groom falsely accused of demanding dowry finally ... Family members of Munish Dalal, who were acquitted by a Noida ...
You've visited this page 2 times. Last visit: 13/1/14
 
 

1/2 Misuse of ipc 498a by Nisha Sharma exposed .Munish Dalal ...

www.youtube.com/watch?v=rjHbnqSpF0Y
Mar 1, 2012 - Uploaded by Anil Kr
Munish Dalal & family aquittal Star News 01mar12 Rebel bride's dowry charge ... Nine Years Later, All...
 
 
 

Wife files false dowry case, husband granted divorce on grounds of ...

www.indianexpress.com/news/wife...false-dowry-case...on.../1006679/
Sep 23, 2012 - Filing of false criminal complaints amounts to cruelty under the Hindu ... divorce to aman who was accused of dowry harassment by his wife.
 
 

Man moves court against wife in false dowry case - India - DNA

www.dnaindia.com › India
Apr 16, 2009 - A woman and a police officer, who allegedly tried to implicate a man in a dowry case, have got trapped in their own net. A harassed Nishant ...
 
 

Woman loses dowry case against husband, in-laws - Times Of India

articles.timesofindia.indiatimes.com › Collections › Dowry
Apr 20, 2013 - HYDERABAD: It is an unusual case of a woman being found guilty in a dowry harassment case! Not having been convinced by her complaint ...
 
 

When husbands are victims of domestic violence - Times Of India

articles.timesofindia.indiatimes.com › Collections › Domestic Violence
Dec 8, 2013 - As a man, to be beaten by your wife is desperately humiliating and, in a way, shameful. ...While news of dowry-related harassment and crimes against ... but are also worried about a false dowry case being filed against them.
 
 

One-third of domestic plaints against men are false: Madurai DSWO ...

www.thehindu.com › Cities › Madurai
Apr 6, 2013 - One-third of domestic plaints against men are false: Madurai DSWO ... from women in Madurai accusing men of dowry harassment, domestic violence and other such malice ... Dowry caseagainst former Minister April 8, 2013.
 

Men allege reverse dowry harassment - Deccan Herald

www.deccanherald.com › National
Claiming that married Indian men were facing reverse dowry harassment at ... all family members of married men have been jailed on the basis of false dowry ...
 
 

Men In Terror Of Wives | Tehelka.com

www.tehelka.com/men-in-terror-of-wives/
“We have had our family members, women included, arrested on false charges. ... Today, the man does precisely that as he fights a dowry harassment case.
 
 

Husband, 4 family members acquitted in dowry harassment case ...

www.business-standard.com/.../husband-4-family-members-acquitted-in-...
Jun 28, 2013 - man and his parents have been acquitted of the charges of murdering ... dowry by a Delhi court which said it was a case of suicide and false ...
 
 

HC quashes dowry harassment case against NRI - Zee News

zeenews.india.com/.../hc-quashes-dowry-harassment-case-against-nri_75...
Feb 21, 2012 - Allowing settlement of a dowry harassment case on payment of Rs 10 lakh to wife ... the Delhi High Court has quashed the FIR against the man.
 

Men are being harassed, says women's panel - Times of India

epaper.timesofindia.com/Repository/ml.asp?Ref...Mode...skin...
Sep 19, 2007 - Men are being harassed, says women's panel. Minati Singha | ... A large number of cases filed under the dowry laws are fake... CASE FILE
 
 

The Telegraph - Calcutta (Kolkata) | 7days | Help, my wife beats me!

www.telegraphindia.com/1090712/jsp/7days/story_11225374.jsp
Jul 12, 2009 - He told a rally Siff organised at Pune last year, where many men related their ... Ponappa says his wife slapped a false dowry harassment case ...
 
 

NRIs claim harassment by anti-dowry law - Hindustan Times

www.hindustantimes.com/...harassment...dowry.../Article1-142538.aspx
Aug 28, 2006 - NRI men apparently get harassed when their estranged wives go to India, at times illegally with ... "In India, my ex-wife filed a false dowry case.
 
 

Man alleges custodial torture - The New Indian Express

www.newindianexpress.com/cities/chennai/article1393109.ece?service...
Dec 25, 2012 - Man alleges custodial torture ... who took him into custody on false dowry harassmentcharges; cops deny allegations ... of Adyar on December 14 and questioned about a case in 2005 where his friends had misused his car.
 
 

Actress Yukta Mookhey's husband booked for dowry harassment ...

www.mumbaimirror.com › Mumbai
Jul 6, 2013 - She had earlier filed a case of harassment, but since this time her complaint includes unnatural s*x and dowry harassment, we have registered her case," said police .... to arrest this actress for making false alligations against her husband. ... She is a prostitute and a cheter who married a richman for money.
 

Men as victims of domestic violence - The Sunday Tribune - Spectrum

www.tribuneindia.com/2012/20121014/spectrum/main4.htm
Oct 14, 2012 - Men who complain of being attacked at home or harassed by their wives ... file a false case under Sec 498A IPC (anti-dowry law) against him.
 

Dowry Act - A weapon of harassment - - The Sunday Indian

www.thesundayindian.com/en/story/dowry-act...harassment/.../8811/
Apr 25, 2010 - By Dowry Act - A weapon of harassment... imprisoned under false allegations of cruelty and dowry harassment, making them run around courts for years, ... Make civil and criminal laws applicable to men and women equally.
 

Man held for cheating and dowry harassment - Ahmedabad Mirror

www.ahmedabadmirror.com/index.aspx?Page=article...sectid...
Dec 22, 2010 - man and his brother were arrested after his wife lodged a complaint of ... and in-laws for cheating and harassing her repeatedly for dowryFalse information ... Mahila Branch PI C N Chaudhary who investigated the case ...
 
 

Court grants divorce to man after wife files fake harassment case

daily.bhaskar.com › Bollywood › Money › Fashion › Bolgs › Gadgets
Sep 23, 2012 - Court observed that filing of false criminal complaints amounts to cruelty ... divorce to aman who was accused of dowry harassment by his wife
TO BE CONTINUED..........
 

 
 

Sunday, 12 January 2014

A step to enroll for Justice against Injustice...

 


In India an easy Trap game is going on by the support of Women favouring Law.Here a mere word by woman against a man can become his nightmare if that complaint is of cognizable offense and FIR is been converted without any inquiry or any proof. The police are like Fox who are delightful to search or catch such victims who are encountered by these biased laws... so that they could easily extort the money along with the conspired women. It's very pity for Innocent men who are been trapped by the families of such brides whose whole and sole motto is to extort the money up to the last extent from the Boy's side by the support of women favoring Law.

It's the Fault of "we" the men that prior to marriage we don't know anything about ABCD of these Biased Law and get married.But once we get into real motion and the true color's of such women come in front of us within few days or months then there is no option left .....and we are only left to curse our Fate that why we have Borne in India where No law is made for protection of men from these wicked women's and from their tortures,malicious and unscrupulous deeds and acts.

 

And When we go to ask our freedom from these women ,even Law also gives us a big thumps down and we are left by either suffocation or to fight for our freedom. When we get to be revolted by first initiative i.e divorce against her then we are most probably encountered by fake 498A  or DVA 2005 followed by branches of Maintenance cases even though they are much educated and highly competitive to get job.

 


 

It's very high time in India where numerous of acts favoring women are going along with them,even animals and birds have their ministry but a creature who feeds the society ,who protects the society,who binds the society even though they carries the pain within them  has No law for them when they are tortured by women within these society only.

 

 

Let Join Hand's to Fight against Biased Law,

 

A single contribution from each man can change the society if not 100% then at least 1 % ....and again we will fight for 99 % and this will carry on...till it not becomes 100%

 


In India every common man is affected by three i  i.e,  inflation,in-laws and insecurity.

 

For this only a fight begins -------------

 


 

"A land of trouble is better than sink of dignity". So fight for your freedom until or unless your breath doesn't ask freedom from your body.

 


 

To get justice one must learn the injustice of laws first, then act accordingly  to win the cases.

 

So,join Men's right movement and be a part of social voice on gender neutral Law. 

 

  Thanks.

  A sufferer......

SRISHAILA.DHARANI (Advocate&consultant)     16 May 2014

Dear Friend,,

Please visit the below blog and also the visit www.498a.org, for more information.You will get courage and mental peace to handle the things.

https://everysuffererisasaviour.blogspot.in/search/label/498A

 

srishaila,advocate,bangalore,9741425514

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     16 May 2014

i think your requairnment has completed.

apart from this, there is no anticipatory bail procedure in UP. if she filed any case against you in UP then Delhi court can not do any thing.

if there is the threat to file false cases against you and your family or pay the amount then you can file a criminal case against them in delhi court for extortion.

feel free to call

Gautam Kapoor (IT professional Studying Law)     16 May 2014

 
I think your questions are well answered here.Looks in all probability they are going to file 498 in UP.There is no AB bail procedure in UP,shiould be there in some time to come.
 
You have 2 options if case is indeed filed in UP.
 
1.File a petition before High Court to quash the F.I.R. and pray for stay of arrest.
 
2.Apply for arrest stay ,interim bail in sessions court.
 
If you are sure that she is hell bent to marry her colleague... advised to contest the divorce case and drag it as much as you can.More cannot be explained here.You are free to PM me.

 

Also it is a very good time for your parents to move out of UP.You can send them on pilgrimage.You need prayers and a good lawyer.

T. Kalaiselvan, Advocate (Advocate)     17 May 2014

Very well advised by most of the persons above.  Since AB system is not available in UP, in the event of she filing false cases against you, you may apply for not to arrest or interim bail and also can lodge a counter case for criminal intimidation and extortion against her and her mamaji in the form of settlement. Engage a good lawyer to fight for your cause.

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     18 June 2014

Well advised by my Ld. friends. However, u can get stay on ur arrest by filing a petition in High Court of U.P. For more details u can contact me at 9871158578

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     18 June 2014

Well advised by my Ld. friends. However, u can get stay on ur arrest by filing a petition in High Court of U.P. For more details u can contact me at 9871158578

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

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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