Anticipatry before 498/DVA FIR

You can apply for Anticipatory bail in respect of 498A IPC. Getting bail would depend upon the facats and circumstances of the case and the discretion of the Judge. Normally one should get ABA. Please note under domestic violence act there is no arrest DV act is a civil proceeding conducted by criminal court. However if under DV act a protection order is passed and the Husband violates the protection order then he can be arrested.

Before registering FIR in case of apprention of arrest in 498A IPC anticipatery bail application is not maintanable because blank order of anticipatory bail cannot be issued. In such cases police also try for councilation.

Vipin Sharma Advocate

337, Akron Ka Rasta, Kishanpole Bazar

Jaipur-302001

9610000043

I do agree with Mr. Vipin. As per as the arrest in DV case is concerned, if the court provides the interim order of protection & the husband violates the same then it is punishable as per law.

Yes U can seek Anticipatory Bail if U feel there is an apprehension that U & other family members could be arrested for commiting offence u/s - 498 A of the IPC

But the same would not be true in case of D.V. Act as explained by  Adv. A.K. Menon

 

Section 438 of the Cr.P.C for your perusal

Direction for grant of bail to person apprehending arrest.

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 subsection (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an

officer in charge of a police station on such accusation, and is

prepared either at the time of arrest or at any time while in the

custody of such officer to give bail, be shall be released on bail;

and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

 

Yes U can seek Anticipatory Bail if U feel there is an apprehension that U & other family members could be arrested for commiting offence u/s - 498 A of the IPC

But the same would not be true in case of D.V. Act as explained by  Adv. A.K. Menon

 

Section 438 of the Cr.P.C for your perusal

Direction for grant of bail to person apprehending arrest.

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 subsection (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an

officer in charge of a police station on such accusation, and is

prepared either at the time of arrest or at any time while in the

custody of such officer to give bail, be shall be released on bail;

and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

 

Apprehention can be gathered either from FIR regarding non bailable offence or warrant of arrest it cannot gathered without any cogent proof. Otherwise it will be blank order which can be misused.

The best way would be,be on alert to the filing of FIR in concerned police station. If you come to know that FIR has been lodged. First thing is leave the jurisdiction and temporarily move to some of your relatives residence. And , then apply for anticipatory in Sessions. Your will surely get bail.

NANDKUMAR B.SAWANT.,M.COM.LL.B.(MUMBAI),ADVOCATE MOBILE.09325226691, 09271971251 e.mail.adv.nbsawant@yahoo.co.in e.mail.nandkumarbs@sify.com REGARDING THE ANTICIPATORY BAIL AGAINST 498A CASE KINDLY NOTE THAT 1.ANTICIPATORY BAIL UNDER SECTION 438 OF CRIMINAL PROCEDURE CODE IS GRANTED TO A PERSON WHO HAS REASONABLE APPREHENSION OF ARREST DUE TO A CRIMINAL CASE FILED AGAINST HIM AT A POLICE STATION UNDER SECTION 498A AND OTHER SECTIONS OF INDIAN PENAL CODE. 2.IT MAY KINDLY BE NOTED THAT UNLESS THE SESSIONS COURT IS FULLY CONVINCED ABOUT THE CHANCES OF ARREST OF THE PETITIONER UNDER ANY NON BAILABLE OFFENCE COURT WILL NOT CONSIDER THE APPLICATION FOR ANTICIPATORY BAIL. 3.AN APPLICATION FOR ANTICIPATORY BAIL IS FILED AT DIST AND SESSIONS COURT WITH COPY OF F.I.R.FILED AT POLICE STATION OR ANY OTHER DOCUMEMTARY EVIDENCE PROVING THE FILING OF A COMPLAINT IN ANY POLICE STATION WHERE THE COMPLAINENT AND ACCUSED RESIDED AND THE PLACE OF OFFENCE OF DOWRY DEMAND TOOK PLACE. 4.COURT WILL CONSIDER EVEN INTERIUM ORDER TILL MAIN ANTICIPATORY BAIL APPLICATION IS DECIDED. 5.IN GENUINE CASES IN CASE THE PETITIONERS ARE APPREHENDING ARREST THE COURT WILL CALL SAY OF THE CONCERNED POLICE OFFICER AND POLICE STATION HAVING JURISDICTION AND IF THERE ARE REASONABLE GROUNDS OF FILING ANY COMPLAINT THEN EVEN IF COMPLAINT IS NOT FILED THEN ON INSISTING BY THE ADVOCATE FOR PETITIONER THE COURT MAY CONSIDER THE PETITION AND CAN ORDER THE CONCERNED POLICE OFFICER TO ISSUE NOTICE TO THE PETITIONER OF CERTAIN DAYS AS THE COURT THINKS FIT AND RECORD HIS STATEMENT IN CASE A CRIME IS REGISTERED AT A LATER DATE.I HAVE SUCCESSFULLY GOT ORDERS IN SOME CASES KINDLY NOTE. KINDLY SEND DETAILS IN CASE ANY FURTHER HELP IS REQUIRED. WITH BEST REGARDS TO YOU YOUR FAMILY AND FRIENDS. THANKING YOU YOURS SINCERELY NANDKUMAR B.SAWANT.,M.COM.LL.B.(MUMBAI),ADVOCATE

Section 438 of the Cr.P.C. say that when a person is apprehending arrest in a criminal case then he can approach the Sessions Court or the Honebl High Cort with a prayer for an anticipatory bail,

I am living under the fear of 498a against me. Although the FIR is not filed yet but I am expecting the same in near future against me and my family member. I filed an application in the session court for anticipatory bail but they dismissed the same after getting report from the police station that there is no case against me till date.

I have attested copies of anticipatory bail application copy and court's dismissal order for my application.

What should I do? Kindly help me.

yes , ACB  can be obtain without Registration of FIR(OF 498A IPC CASE) to it only 2 things are necessary 1) apprehension of arrest 2)and reasonable belief  famous citation on it is CRIMES 2008 VOLUME 3 PAGE 6
 

NO FIR is necessary to get ACbail ( for offence punishable u/s 498AIPC)only reasonable apprehension and resonable belief is niessary , best citation on this point is CRIMES 2008 VOL 3 Page 6 of orissa High Court , u can also file an affidavit  of the petitioner stating that his wife is residding separate since long time and there is threat of  false complaint by her , DEFINATELY THIS WILL WORK  or u can press the court for giving 7 days notice from the date of reg of FIR so that u can approch the concerned forum for ACB aas per the hardwar Lal case of P& H HC