Mahadev 19 June 2017

498a_anticipatory bail rules

Respected lawyers/members,

I wanted to know around the rules of anticipatory bail in case of 498A. If a 498A case is lodged by wife in another state ( Tamil Nadu- Salem) apart from where husband's residence ( Gujarat-Surat) is OR lodged in another district (Ahmedabad) in the same state where husband resides in a different district,(Gujarat-Surat) could you tell me in which Court of Session/High Court does the husband approach for AB ? Is it the same session court ( Concerned Session court of Salem) or High court ( Tamil Nadu High Court) where the Complaint is lodged OR it can be any session court or High Court where he resides OR alternately he can approach any Session or High Court throughout India.

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3 Replies

Rohit Krishan Naagpal (Advocate) 19 June 2017

Anticipatory Bail is provided Section 438 in The Code Of Criminal Procedure, 1973

438. Direction for grant of bail to person apprehending arrest.

(1) 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; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a 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;

(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.

Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 : (1930 Cri LJ 1125). It has, been held anticipatory bail can be filed on apprehension of arrest So you can file anticipatory bail where you ae apprehending arrest .

Recently Hon'ble Apex Court in Arnesh Kumar v. State of Bihar & another reported in 2014(3) P.L.J.R. 314 (SC) has given guidelines for arrest in 498A cases so you do not fear ! engage a ompetent counsel and let truth prevail.

All the best

Dr J C Vashista (Advocate) 20 June 2017

Basically the application for grant of anticipatory bail shall be filed/entertained by the Sessions Court where FIR has been lodged, i.e., Salem. In case the Sessions Court rejects it is to be filed before the same (Madras) High Court, where FIR was registered.

However, it may be applied to the Sessions Court of applicant/accused (take a chance) in Surat but not throughout the territory of India.

I agree and appreciate the detailed explaination by Mr. R K Nagpal, Advocate, qua legal proposition for filing of petition for AB, whereas the query pertained to jurisdiction of the Court for applying/grant of AB.