Please suggest me

If FIR filed approach the Dist., and Sessions Court of your Dist to get a anticipatory bail u/s 438 of Cr.P.C.  Take advocates help.

@ Sohara

Your que. has two parts: in my opinion understanding first the Ab or regular Bail part is mor eimportant as with it half the battle is wone and if author and family suceed in following below suggestions then come back to get guidence on how to get acquatal from S. 498a IPC complaint case:-

LAW IN DETAIL

The offences committed by an accused fall under two categories:

1. BAILABLE OFFENCES :
Bailable offences are offences mentioned in the I schedule of the Indian Penal code as bailable offences. When any person accused for a bailable offence is arrested or detained without warrant by police officer or is brought before a Court, he must be released on bail, if a request for bail is made. In case of a bailable offence, bail is a matter of right . If such officer or Court thinks it fit, such person maybe released on a personal bond without sureties. If for any reason, the police doesn’t give bail, the arrested person must be produced before a Magistrate within 24 hours of arrest.

2.NON-BAILABLE OFFENCES
In case a person is accused of a non-bailable offence it is a matter of discretion of the court to grant or refuse bail and and application has to be made in court to grant bail. A person will not be released if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (or) Such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. However a person under the age of sixteen years or a woman or a sick or infirm person may be released on bail. If, at any time after the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court feels that the accused is not guilty of any such offence, it shall release the accused on bail.

3. Anticipatory Bail :
If a person believes that he may be arrested for a non-bailable offence, he may apply to the High Court or Court of session for anticipatory bail i.e, in the event of arrest, he shall be released on bail. While granting anticipatory bail, the court may impose certain conditions in the interest of justice and to ensure that no obstructions are created on the path to justice. The accused may have to take the permission of the court before leaving the country. The anticipatory bail is valid during the whole proceedings of the case unless cancelled earlier.

PROCESS FOR SOLUTION…Complaint Under which Section?
Section 436 - 450

Whom to complain / where to complaint?
• The police officer himself grants bail in bailable cases
• The Magistrate grants bail in non-bailable cases
• The Court of session & High Court have special & wide powers to grant bail.

How to file the Case ?
• For non-bailable offences, apply to the concerned magistrate setting out the grounds for the grant of bail.
• In case the court is convinced that bail should be granted, it passes the order after hearing the arguments.
• At that stage fill in the bail bond duly signed by the surety and to be filed through his advocate. The surety takes the responsibility for producing the accused person in the court.
• The amount of every bond executed shall be fixed with due regard to the circumstances of the case.
• A High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application filed by the complainant or the prosecution.
• In case of a bailable offence, only the bail bonds must be filed. No application is required to be made.

What Next ?
• Where a person is released on bail he should make himself available to the police whenever they need him
• If he is released on a conditional bail, he must fulfill all the conditions
• If he refuses to comply with the conditions, the court will refuse any further applications for bail.
• A person released on bail by police must seek fresh bail from court.

ALTERNATE REMEDIES
There are no Alternative remedies :-?

Format :
What should be written in the application?


In the application always mention the following things:
• Name :
• Offence for which he was arrested :
• Date of arrest :
• Address, years of residence and descripttion of family :
• To whom the house belongs
• If a tenant, details of landlord:
• Place of work and other details:
• Mention whether arrested earlier or not, if not involved in any crime then mention it :
•Write "I promise that I will not abscond / mislead the witnesses / manipulate or destroy the evidences/whenever called I will appear before the court of Police Station."
• Request to be released on bail :
• Give Details like I Stay_____ (place) or I belong to ________ community. People from_____ Community know me very well therefore there is no apprehension of my absconding.
• This application should be placed before the magistrate on first hearing.
• It could be given either in writing or in oral.

Here is the coverage from The Hindu https://www.hindu.com/2009/07/24/stories/2009072461182000.htm

The Supreme Court of India explains the meaning of Anticipatory Bail and lays the conditions for granting it. Here are the 9 guidelines as laid down by a constitution bench, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:

i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.

ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the 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.


Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.

iii) The observations made in Balchand Jain’s case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life.

Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.

iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation.


One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.

v) The filing of First Information Report (FIR) 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.


vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.

vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.


viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.

ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.

Here is the judgment: SAVITRI AGARWAL Vs STATE OF MAHARASHTRA – 2009
https://indiankanoon.org/doc/238832/

The main conditions for AB is that you have to prove that you have

1 Roots in society and that you will comply with the investigation. Since it is a familial matter and that you are separated - there are chances of the wife filing a case on you.

2 Show the court that you will not abscond and are willing to put up a surety amounting to Rs 5000 or something like that.

3 Show the court that you have been threatened of false dowry harassment case on you and your entire family. AB will cost only Rs 12-20 as court fee. Your lawyer may charge you and is one of the main sources of income for many lawyers and advocates.

4 Mention in court if all else fails - that you be given atleast 7 days notice to comply with investigation and apply for regular bail at the minimum.

Read the recommendations of the law commission which were made in 2007.
https://lawcommissionofindia.nic.in/reports/report203.pdf


File CRLP in High Court for Anticipatory Bail like as under:

Example: Petition under Section 438 of Crl. P.C. praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to direct the Station House Officer, XXX to release the petitioner on bail in the event of execution of Non Bailable Warrants issued against the petitioner in P.R.C.No. XX of 2008 on the file of Judicial Magistrate of First Class, Special Mobile Court, XXXX. See below information on using your AB to maximum use.

If the accused of 498a or any one is arrested as per record, because a person is in arrest even if he is released on Anticipatory Bail and his Life and Liberty is restricted and can has the Right to Information within 48 hrs u/s 7(1) of RTI Act.

You will also get replies within 48 hrs of your RTI application under life and liberty section. So this is a great new for all people arrested and this will really let the police think before unnecessory arresting innocent people as this may lead flooding with asking information within 48 hrs.

Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.

Here is an explanation of Anticipatory bail given by the Supreme Court (Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 SUPREME COURT 1632). A person can apply for AB even after the FIR is filed, but not if the person has been arrested. Read the excerpts to get an understanding of AB:

35. Section 438 (1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe’ that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.

Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet file.

Fourthly, anticipatory bail can be granted even after in FIR is filed, so long as the applicant has not been arrested.

After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offenses for which he is arrested.


The four factors, which are relevant for considering the application for grant of anticipatory bail, are :

The nature and gravity or seriousness of accusation as apprehended by the applicant;

The antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;

The likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and

Hope above helps ?

All the best............
 

I filed writ petition u/a 227 of the Constitution of India against Interlocutory Order passed by the learned Family Court u/s 12 of the Guardians & Wards Act refusing me visiting rights and this writ petition has been dismissed on merits at the admission stage by the learned Single Judge Bench of Rajasthan High Court. I have made mistake of not making the mother, who was respondent  in family court case, as respondent in this writ petition, which high court also not noted and only respondent in this writ was family court. Now, can I file SLP in this writ petition making the mother as respondent. Special appeal in this writ is not maintenable in Rajasthan High Court, as it has originated from Civil court order and family court appeal is also not maintenable as the order is Interlocutory by virtue of its u/s 12.    

Please suggest if anticipatory bail under section 438 Cr p.c. can be granted if a non-bailable, non-compoundable and cognizable case is registered against the accused on the basis of his own written admission of commission of offence.