chances of getting anticipatory bail in 498a

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”.

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

Conditional Anticipatory Bail in 498a

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.

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