Section 498A - Where to apply for AB
Mukesh
(Querist) 31 July 2009
This query is : Resolved
I had earlier asked a question in this forum regarding harassment by inlaws and the learned members had very kindly given good advice.
I am a resident of Burdwan(West Bengal). I have recently been transferred to Bhubaneswar (Orissa) by my employer with my family. To safeguard against any misuse of 498A by my inlaws I want to take AB. My question is
1) Where should I apply for AB ? In Burdwan or Bhubaneswar ? For obvious reasons Bhubaneswar will be convenient. Please suggest. Whether the same shall be valid in West Bengal?
2) Am I obliged to my wife and inlaws about my transfer to Bhubaneswar or first I should get AB and then inform.
3) Where the further proceedings will take place?
charudureja
(Expert) 31 July 2009
well if there is any anticipation of your being falsely implicated then u can get the anticipatory Bail.
2ndly where the cause of action has arisen ie where the anticipation of offence is there only u can file for bail so if it is in west Bengal then only there can it be filed and not where u r posted.
PALNITKAR V.V.
(Expert) 31 July 2009
It is always advisable to have AB at Burdwan since the case would go on there and not at Bhubaneswar. You need not inform your wife about your transfer if your relations are strained.
Kiran Kumar
(Expert) 01 August 2009
facts of ur case suggest that u should file the application at Brudwan.
ur transfer will not be of any consideration at this stage, the court has to see the fact that where the offence has been committed (as Charu suggested)
u can file petition for AB, but its not a matter of right that u ll get it, it may be declined.
in a latest SC judgment Hon'ble SC says the trial is to proceed where the offence has been committed....this judgment has come in context of S.498-A IPC only.
G. ARAVINTHAN
(Expert) 01 August 2009
You have to obtain AB in the place of cause of Action. you have to mention the police station also for jurisdiction.
Do you anticipate any complaint from your in-laws? what happened
neeraj
(Expert) 01 August 2009
I want to correct Shri Kran Kumar here.
Aticipatory bail "is a matter of right" but its "not an absolute right". You may or may not get it, its on the judges discretion. But then honb'le supreme court has repeatedly pronounced in its judgments that "Bail is a rule and jail is an exception".
Especially in cases of 498a, bail is not a problem now a days.
Regards.
Kiran Kumar
(Expert) 01 August 2009
dear Neeraj...to the extent of my knowledge, Bail in bailable offences is a matter of right not in nonbailable offences.
do u think in a case where the prima facie offence like murder or rape is made out there AB can be termed as Matter of Right.
well i ll check the things, i may be wrong.
i would like to c those judgments by SC...pls mention those.
thanks for pointing it out.
charudureja
(Expert) 01 August 2009
Dear Mr. Neeraj
i agree with Mr. Kiran. U cant ask for anticipatory bail as a mtter of right in nonbailble offences.
Manish Singh
(Expert) 07 August 2009
Dear Members,
please take note of the recent ruling of the SC.
Also, we must keep in mind that accusation of non bailable offence does not make aperson guilty as it is just an accusation which must be established by facts and circumstances.
in the recent case of Savitry Agarwal, the Supreme Court has cautioned trial courts and High Courts against imposing unnecessary constraints and conditions while granting anticipatory bail under Section 438 of the Criminal Procedure Code.
Over-generous infusion of constraints and conditions, which were not found in Section 438, could make the provision constitutionally vulnerable. For, the right of personal freedom, as enshrined in Article 21 of the Constitution, could not be made to depend on compliance with unreasonable restrictions, said a Bench consisting of Justices D.K. Jain and R.M. Lodha.
It reiterated the guidelines laid down by a Constitution Bench which the courts were required to keep in mind while dealing with an application for anticipatory bail.
Writing the judgment, Justice Jain said the discretion under Section 438 had to be exercised with due care and circumspection depending on circumstances justifying its exercise. The court must be satisfied that the applicant invoking this 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.”
The court, quoting the Constitution Bench, said, “The filing of the first information report 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.”
In the instant case, Savitri Agarwal and three other family members were aggrieved over the cancellation of anticipatory bail by the Nagpur Bench of the Bombay High Court, acting on applications from the State and a complainant challenging the trial court’s order granting them anticipatory bail in a dowry case.
Serious error
Allowing the appeals, the Bench said that on the touchstone of parameters laid down by this court, the High Court had committed a serious error in reversing the order passed by the trial court granting anticipatory bail to Savitri Agarwal and other appellants.
“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”, the Bench said. It set aside the High Court order and restored the trial court’s order granting anticipatory bail.
Manish Singh
(Expert) 07 August 2009
There is also a lot of controversy over the question as to the court, which hemay apply when the offence is committed in one jurisdiction and the accused residesin another jurisdiction.but this seems to be settled nw and another court where the accused resides shall have jurisdiction to grant ab. we may take a recent judgment of zdelhi HC grating bail to Varun Gandhi.
The Calcutta10, Karnataka11, Bombay12, and Patna13HighCourts have held that there is no bar to the applicant asking for an anticipatory bailfrom the court within whose jurisdiction he is apprehending arrest. On the otherhand the Punjab14, J&K15, Kerala and MP High Courts have held that bail andanticipatory bail are mere ancillary matters to the whole trial procedure. So, in theabsence of any specific guidelines in s. 438, the general rule under s. 177 must apply.Thus only the high court within whose jurisdiction the offence was committed andwhich has the jurisdiction to try the case is competent to grant the anticipatory bail.It is submitted that s. 438 is a provision to preserve individual liberty and thatconferring competence only on the courts within whose jurisdiction the offence was committed would amount to a lot of hardship to the applicant. But in the absence ofany specific legislative guideline, the general rule must be applied.
9Ramesh Chandra vs. State of Gujarat, 1988 Cri LJ 210 (Gujarat).10B.R. Sinha vs. State of West Bengal, 1982 Cri LJ 61 (Cal).11Naidu vs. State of Karnataka, 1984 Cri LJ 757 (Kant).12N.K. Nayar vs.State of Maharashtra, 1985 Cri LJ 1887 (Bombay).13Syed Zafrul vs. State of Bihar, AIR 1986 Pat 194.14Ravinder vs. State of Punjab, 1984 Cri LJ 714 (Punj and Har).15Mohan vs. State (1983) Cri LJ 1182 (J & K
