Second Part:

The complainant lodges a pvt complaint of cheque bounce against the accuse no. 1, along with him the complaint is also put on the sister and the father of accuse no. 1. (the signature on the cheque is of only the accuse... not of his sister or father). the court date is 7/03/3012, the accuse along with sister n father goes to attend the court date along with their lawyer. the judge is not there and the next date is given. the accuse and the sister are standing outside the court where the constables from the police station take them in custody without showing them any complaint copy but only pressurizing them by saying that their senior has given them orders to arrest us and get us to the police station.

we are brought to the police station, the accuse his sister and his father. the sister is sent in the ladies room and the accuse and his father are sent in to the men's room. settlement happens and the accuse pays of the 11 lakhs. the sister n the father are left after 6 hours of detention. the accuse is kept in custody and without his knowledge he is been booked under 420, 406 and some 138 (cheque bounce). he is then said that he will be presented in holiday court next day as it was holi. the police plays dirty and doesnt show to th holiday court judge that the money has been paid by the accused. the judge feels that the amount is too much and should not be granted bail hence custody till 12th.again when he is presented on 12th the police fails to mention that the money has been given hence again custody till 15th. Finally on the 15th he gets judicial custody.

the sister n father hence go for their anticipatory bail on 21st and are granted interim relief till 30th now the order that is given is that no arrest can be done till 30th n if arrested a surety of 15,000 be paid and then they can be released and they should be present for interrogation if the police calls and also they should not leave india and go without the permission of the court.

 

My query is will the anticipatory bail be granted to the sister n the brother. there is no reason for thier custoday as the main accused has served police custody and has now got Judicial custody and also the total money has been paid to the complainant. are there any chances of our bail application getting rejected. our lawyer says that it should get through 99% but what if that 1% doubt comes through--what can be the course of action then??? what necessary precautions to be taken?? is it necessary for the sister n father to be present on the judgement day (the judge said that the judgement will be given on 30th).

 

Would be very grateful if you can guide me and make me understand what can be done.

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

Conditional Anticipatory Bail in 498a

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.

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