Query for bail u/s 498

Hi Amit,

 

Your query answered at below link. Click on below link or copy & paste in your browser for viewing it:

 

https://www.lawforumindia.com/viewtopic.php?f=10&t=160

 

//peace

/Saurabh..V

Dear Friend

Since the FIR is registered and you have 7 days notice bail, my advice would be to apply for Anticipatory Bail without any delay. 

Regards

VIRAJ KADAM

Advocate,

Supreme Court of India

virajkadam@gmail.com

Dear,

7 days notice period means, u have to file regular bail within that period in the concerned court and after getting order furnish the bail bond. 

Besides that u need not worry because as per the latest judgement of the the Hon'ble SC no immediate arrest in 498-A cases and the arrest would only be after the permission of the magistrate.  

Go through this judgement:

IN THE SUPREME COURT OF INDIA

                CRIMINAL APPELLATE JURISDICTION

               CRIMINAL APPEAL NO. 1277  OF 2014
  (@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)

ARNESH KUMAR                                      ….. APPELLANT

                                     VERSUS

STATE OF BIHAR & ANR.         …. RESPONDENTS

                              J U D G M E N T

Chandramauli Kr. Prasad

       The petitioner apprehends his arrest in a case

under Section 498-A of the Indian Penal Code, 1860

(hereinafter called as IPC) and Section 4 of the

Dowry Prohibition Act, 1961.  The maximum sentence

provided under Section 498-A IPC is imprisonment

for a term which may extend to three years and

fine whereas the maximum sentence provided under

                                                                                 Page 1

                                     2

Section 4 of the Dowry Prohibition Act is two

years and with fine.

       Petitioner   happens   to   be   the   husband   of

respondent no.2 Sweta Kiran.  The marriage between

them was solemnized on 1   July, 2007. His attempt
                                        st

to secure anticipatory bail has failed and hence

he has knocked the door of this Court by way of

this Special Leave Petition.

       Leave granted.

       In sum and substance, allegation levelled by

the wife against the appellant is that demand of

Rupees eight lacs, a maruti car, an          air-

conditioner, television set etc. was made by her

mother-in-law and father-in-law and when this fact

was   brought   to   the   appellant’s   notice,   he

supported   his   mother   and   threatened   to   marry

another woman.  It has been alleged that she was

                                                                                 Page 2

                                     3

driven out of the matrimonial home due to non-

fulfilment of the demand of dowry.

       Denying   these   allegations,   the   appellant

preferred an application for anticipatory bail

which was earlier rejected by the learned Sessions

Judge and thereafter by the High Court.

       There is phenomenal increase in matrimonial

disputes in recent years.   The institution of

marriage   is   greatly   revered   in   this   country.

Section 498-A of the IPC was introduced with

avowed object to combat the menace of harassment

to a woman at the hands of her husband and his

relatives.   The fact that Section 498-A is a

cognizable and non-bailable offence has lent it a

dubious place of pride amongst the provisions that

are   used   as   weapons   rather   than   shield   by

disgruntled wives.  The simplest way to harass is

to get the husband and his relatives arrested

under this provision.  In a quite number of cases,

                                                                                 Page 3

                                     4

bed-ridden grand-fathers and grand-mothers of the

husbands, their sisters living abroad for decades

are arrested.  “Crime in India 2012  Statistics”

published   by   National   Crime   Records   Bureau,

Ministry of Home Affairs shows arrest of 1,97,762

persons all over India during the year 2012 for

offence under Section 498-A of the IPC, 9.4% more

than the year 2011.  Nearly a quarter of those

arrested under this provision in 2012 were women

i.e. 47,951 which depicts that mothers and sisters

of the husbands were liberally included in their

arrest net.   Its share is 6% out of the total

persons arrested under the crimes committed under

Indian Penal Code.  It accounts for 4.5% of total

crimes committed under different sections of penal

code, more than any other crimes excepting theft

and hurt.  The rate of charge-sheeting in cases

under Section 498A, IPC is as high as 93.6%, while

the conviction rate is only 15%, which is lowest

across all heads.  As many as 3,72,706 cases are

                                                                                 Page 4

                                     5

pending trial of which on current estimate, nearly

3,17,000 are likely to result in acquittal.

       Arrest brings humiliation, curtails freedom

and cast scars forever.  Law makers know it so

also the police.  There is a battle between the

law makers and the police and it seems that police

has not learnt its lesson; the lesson implicit and

embodied in the Cr.PC.  It has not come out of its

colonial   image   despite   six   decades   of

independence, it is largely considered as a tool

of   harassment,   oppression   and   surely   not

considered a friend of public.   The need for

caution in exercising the drastic power of arrest

has been emphasized time and again by Courts but

has not yielded desired result. Power to arrest

greatly contributes to its arrogance so also the

failure of the Magistracy to check it.  Not only

this, the power of arrest is one of the lucrative

sources of police corruption.   The attitude to

arrest first and then proceed with the rest is

                                                                                 Page 5

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despicable.  It has become a handy tool to the

police officers who lack sensitivity or act with

oblique motive.

       Law Commissions, Police Commissions and this

Court in a large number of judgments emphasized

the need to maintain a balance between individual

liberty and societal order while exercising the

power of arrest.  Police officers make arrest as

they believe that they possess the power to do so.

As the arrest curtails freedom, brings humiliation

and casts scars forever, we feel differently.  We

believe   that   no   arrest   should   be   made   only

because the offence is non-bailable and cognizable

and therefore,  lawful for the police officers to

do so.  The existence of the power to arrest is

one thing, the justification for the exercise of

it is quite another. Apart from power to arrest,

the police officers must be able to justify the

reasons thereof.   No arrest can be made in a

routine manner on a mere allegation of commission

of an offence made against a person.  It would be

                                                                                 Page 6

                                     7

prudent and wise for a police officer that no

arrest is made without a reasonable satisfaction

reached   after   some   investigation   as   to   the

genuineness of the allegation. Despite this legal

position,   the   Legislature   did   not   find   any

improvement.                Numbers   of   arrest   have   not

decreased.   Ultimately, the Parliament had to

intervene and on the recommendation of the 177th

Report of the Law Commission submitted in the year

2001, Section 41 of the Code of Criminal Procedure

(for short ‘Cr.PC), in the present form came to be

enacted.  It is interesting to note that such a

recommendation was made by the Law Commission in

its 152nd  and 154th  Report submitted as back in the
year 1994.   The value of the proportionality

permeates the amendment relating to arrest.  As

the offence with which we are concerned in the

present appeal, provides for a maximum punishment

of imprisonment which may extend to seven years

and   fine,   Section   41(1)(b),   Cr.PC   which   is

relevant for the purpose reads as follows:

                                                                                 Page 7

                                     8

    “ 41.   When   police   may   arrest   without
    warrant    .-(1) Any police officer may without
    an order from a Magistrate and without a
    warrant, arrest any person –

     (a)  x            x             x            x              x       x

     (b)  against whom a reasonable complaint
     has been made, or credible information
     has   been   received,   or   a   reasonable
     suspicion exists that he has committed a
     cognizable   offence   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,
     if   the   following   conditions   are
     satisfied, namely :-

       (i) x x x x x

       (ii) the police officer is satisfied
       that such arrest is necessary –

       (a) to   prevent   such   person   from
               committing any further offence; or

       (b) for  proper   investigation  of   the
               offence; or

       (c) to prevent such person from causing
               the  evidence  of  the  offence  to
               disappear or tampering with such
               evidence in any manner; or

       (d) to prevent such person from making
               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 the police officer;
               or

       (e) as unless such person is arrested,
               his presence in the Court whenever
               required cannot be ensured,

                                                                                 Page 8

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    and the police officer shall record while
    making such arrest, his reasons in writing:

    Provided that a police officer shall, in
    all cases where the arrest of a person is
    not required under the provisions of this
    sub-section, record the reasons in writing
    for not making the arrest.

    X         x               x            x              x             x

    From a plain reading of the aforesaid provision,

    it is evident that a person accused of offence

    punishable with imprisonment for a term which

    may be less than seven years or which may extend

    to seven years with or without fine, cannot be

    arrested by the police officer only on its

    satisfaction that such person had committed the

    offence punishable as aforesaid.  Police officer

    before arrest, in such cases has to be further

    satisfied   that   such   arrest   is   necessary   to

    prevent such person from committing any further

    offence; or for proper investigation of the

    case; or to prevent the accused from causing the

                                                                                 Page 9

                                     10

    evidence   of   the   offence   to   disappear;   or

    tampering with such evidence in any manner; or

    to   prevent   such   person   from   making   any

    inducement, threat or promise to a witness so as

    to dissuade him from disclosing such facts to

    the Court or the police officer; or unless such

    accused person is arrested, his presence in the

    court   whenever   required   cannot   be   ensured.

    These are the conclusions, which one may reach

    based on facts.  Law mandates the police officer

    to state the facts and record the reasons in

    writing which led him to come to a conclusion

    covered by any of the provisions aforesaid,

    while making such arrest.  Law further requires

    the police officers to record the reasons in

    writing for not making the arrest.  In pith and

    core, the police office before arrest must put a

    question to himself, why arrest?  Is it really

    required?   What purpose it will serve?   What

    object it will achieve?  It is only after these

    questions are addressed and one or the other

                                                                                Page 10

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    conditions as enumerated above is satisfied, the

    power of arrest needs to be exercised.  In fine,

    before arrest first the police officers should

    have   reason   to   believe   on   the   basis   of

    information and material that the accused has

    committed the offence.   Apart from this, the

    police officer has to be satisfied further that

    the arrest is necessary for one or the more

    purposes envisaged by sub-clauses (a) to (e) of

    clause (1) of Section 41 of Cr.PC.

              An accused arrested without warrant by

    the police has the constitutional right under

    Article 22(2) of the Constitution of India and

    Section 57, Cr.PC to be produced before the

    Magistrate without unnecessary delay and in no

    circumstances beyond 24 hours excluding the time

    necessary for the journey.  During the course of

    investigation of a case, an accused can be kept

    in detention beyond a period of 24 hours only

    when it is authorised by the Magistrate in

                                                                                Page 11

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    exercise of power under Section 167 Cr.PC.  The

    power to authorise detention is a very solemn

    function.  It affects the liberty and freedom of

    citizens and needs to be exercised with great

    care and caution. Our experience tells us that

    it is not exercised with the seriousness it

    deserves. In many of the cases, detention is

    authorised in a routine, casual and cavalier

    manner.             Before   a   Magistrate   authorises

    detention under Section 167, Cr.PC, he has to be

    first satisfied that the arrest made is legal

    and   in   accordance   with   law   and   all   the

    constitutional rights of the person arrested is

    satisfied.  If the arrest effected by the police

    officer does not satisfy the requirements of

    Section 41 of the Code, Magistrate is duty bound

    not   to   authorise   his   further   detention   and

    release the accused.  In other words, when an

    accused is produced before the Magistrate,  the

    police officer effecting the arrest is required

    to furnish to the Magistrate, the facts, reasons

                                                                                Page 12

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    and   its   conclusions   for   arrest   and   the

    Magistrate in turn is to be satisfied that

    condition precedent for arrest under Section 41

    Cr.PC   has   been   satisfied   and   it   is   only

    thereafter that he will authorise the detention

    of   an   accused.                    The   Magistrate   before

    authorising   detention   will   record   its   own

    satisfaction, may be in brief but   the said

    satisfaction must reflect from its order.  It

    shall never be based upon the ipse dixit of the

    police officer, for example, in case the police

    officer   considers   the   arrest   necessary   to

    prevent such person from committing any further

    offence or for proper investigation of the case

    or for preventing an accused from tampering with

    evidence or making inducement etc., the police

    officer shall furnish to the Magistrate the

    facts, the reasons and materials on the basis of

    which   the   police   officer   had   reached   its

    conclusion.   Those shall be perused by the

    Magistrate while authorising the detention and

                                                                                Page 13

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    only after recording its satisfaction in writing

    that the Magistrate will authorise the detention

    of the accused.   In fine, when a suspect is

    arrested and produced before a Magistrate for

    authorising detention, the Magistrate has to

    address the question whether specific reasons

    have been recorded for arrest and if so, prima

    facie those reasons are relevant and secondly a

    reasonable conclusion could at all be reached by

    the   police   officer   that   one   or   the   other

    conditions stated above are attracted.  To this

    limited extent the Magistrate will make judicial

    scrutiny.

              Another provision i.e. Section 41A Cr.PC

    aimed to avoid unnecessary arrest or threat of

    arrest looming large on accused requires to be

    vitalised.   Section 41A as inserted by Section

    6 of the Code of Criminal Procedure (Amendment)

    Act, 2008(Act 5 of 2009), which is relevant in

    the context reads as follows:

                                                                                Page 14

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              “41A. Notice of appearance before
              police   officer.-(1)   The   police
              officer shall, in all cases where
              the   arrest   of   a   person   is   not
              required   under   the   provisions   of
              sub-section (1) of Section 41, issue
              a   notice   directing   the   person
              against whom a reasonable complaint
              has   been   made,   or   credible
              information has been received, or a
              reasonable suspicion exists that he
              has committed a cognizable offence,
              to appear before him or at such
              other place as may be specified in
              the notice.

              (2) Where such a notice is issued to
              any person, it shall be the duty of
              that person to comply with the terms
              of the notice.

              (3) Where such person complies and
              continues to comply with the notice,
              he shall not be arrested in respect
              of the offence referred to in the
              notice unless, for reasons to be
              recorded, the police officer is of
              the opinion that he ought to be
              arrested.

              (4) Where such person, at any time,
              fails to comply with the terms of
              the   notice   or   is   unwilling   to
              identify himself, the police officer
              may, subject to such orders as may
              have   been   passed   by   a   competent
              Court in this behalf, arrest him for
              the   offence   mentioned   in   the
              notice.”

                                                                                Page 15

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              Aforesaid provision makes it clear that

    in all cases where the arrest of a person is not

    required under Section 41(1), Cr.PC, the police

    officer is required to issue notice directing

    the accused to appear before him at a specified

    place and time.  Law obliges such an accused to

    appear before the police officer and it further

    mandates that if such an accused complies with

    the terms of notice he shall not be arrested,

    unless for reasons to be recorded, the police

    office is of the opinion that the arrest is

    necessary.  At this stage also, the condition

    precedent for arrest as envisaged under Section

    41 Cr.PC has to be complied and shall be subject

    to   the   same   scrutiny   by   the   Magistrate   as

    aforesaid.

              We   are   of   the   opinion   that   if   the

    provisions of Section 41, Cr.PC which authorises

    the police officer to arrest an accused without

    an order from a Magistrate and without a warrant

                                                                                Page 16

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    are scrupulously enforced, the wrong committed

    by   the   police   officers   intentionally   or

    unwittingly would be reversed and the number of

    cases which come to the Court for grant of

    anticipatory bail will substantially reduce.  We

    would like to emphasise that the practice of

    mechanically reproducing in the case diary all

    or most of the reasons contained in Section 41

    Cr.PC for effecting arrest be discouraged and

    discontinued.

       Our endeavour in this judgment is to ensure

    that   police   officers   do   not   arrest   accused

    unnecessarily and Magistrate do not authorise

    detention casually and mechanically.  In order

    to ensure what we have observed above, we give

    the following direction:

    (1) 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

                                                                                Page 17

                                     18

           parameters laid down above flowing from

           Section 41, Cr.PC;

    (2) All police officers be provided with a

           check list containing specified sub-clauses

           under Section 41(1)(b)(ii);

    (3) 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;

    (4) 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;

    (5) The decision not to arrest an accused, be

           forwarded   to   the   Magistrate   within   two

           weeks from the date of the institution of

                                                                                Page 18

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           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;

    (6) 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;

    (7) 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.

    (8) Authorising   detention   without   recording

           reasons   as   aforesaid   by   the   judicial

                                                                                Page 19

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           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.

              We direct that a copy of this judgment be

       forwarded to the Chief Secretaries as also the

       Director Generals of Police of all the State

       Governments and the Union Territories and the

       Registrar General of all the High Courts for

       onward   transmission   and   ensuring   its

       compliance.

                                                                                Page 20

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              By order dated 31  of October, 2013, this
                                           st

       Court had granted provisional bail to the

       appellant on certain conditions. We make this

       order absolute.

              In the result, we allow this appeal,

       making our aforesaid order dated 31  October,
                                                                   st

       2013 absolute; with the directions aforesaid.

                                      ………………………………………………………………J

                                      (CHANDRAMAULI KR. PRASAD)

                                         ………………………………………………………………J

                               (PINAKI CHANDRA GHOSE)

     NEW DELHI,
     July 2, 2014.

 

 

https://www.lawyersclubindia.com/forum/Fight-against-misuse-of-498a-ipc--103100.asp#.U6gslUCm9dg


https://www.lawyersclubindia.com/forum/Best-way-to-fight-against-false-498a-103111.asp#.U6gsRkCm9dg


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https://www.lawyersclubindia.com/forum/Withdrawal-498a-case-105891.asp#.U9fIP0Cm9dg

Dear Friend,

 

Please read the contents of the Notice Bail order. If it writes "in the event of necessity of arrest IO should give 7 days notice to the applicant." You can sit pretty till you are served the notice of arrest by the police.

 

However, if it is written that "no arrest should be done within 7 days of the FIR" then  you should apply for bail within 7 days.

 

So it all depends on what is written in the Notice Bail order.

 

Also, I won't give in to the false belief that Supreme Court has stopped the arrest in 498a. The judgement just asks Police Officer to follow procedure u/s 41(1)(a) of Code of Criminal Procedure and nothing more.

 

 

Regards,

But shoonee Ji it is clearly mention in the judgement to arrest only after magistrate approval.

IO has to give valid reasons for arrest or for not to arrest as well. as per the judgement

Yes, rakhi has pointed out the right Judgment a Classic case by the Supreme Court.

Dear Sir,

 

Where is it written that arrest with permission? Please read carefully the preface of those 8 guidelines and 3rd Guideline.

 

It is clearly written that Police officer should not arrest unnecessarily and magistrate should not authorize detention casually and mechanically

 

Arrest and Detention are two different things.

 

Further if you read point 3 it says.  The Police Officer shall forward the checklist duly filled with furnish the reasons which "necessitated"  the arrest, while forwarding/ producing the accused before the magistrate for further detention.

 

Necessitated the arrest means the past tense. The accused is produced after the arrest to the magistrate. That means arrest has already taken place.

 

I am copying the operative part of the judgment with highlights for better understanding.

 

Our endeavour in this judgment is to ensure

    that   police   officers   do   not   arrest   accused

    unnecessarily and Magistrate do not authorise

    detention casually and mechanically.  In order

    to ensure what we have observed above, we give

    the following direction:

    (1) 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

                                                                                Page 17

                                     18

           parameters laid down above flowing from

           Section 41, Cr.PC;

    (2) All police officers be provided with a

           check list containing specified sub-clauses

           under Section 41(1)(b)(ii);

    (3) 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;

    (4) 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;

    (5) The decision not to arrest an accused, be

           forwarded   to   the   Magistrate   within   two

           weeks from the date of the institution of

                                                                                Page 18

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           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;

    (6) 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;

    (7) 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.

    (8) Authorising   detention   without   recording

           reasons   as   aforesaid   by   the   judicial

                                                                                Page 19

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           Magistrate concerned shall be liable for

           departmental action by the appropriate High

           Court.

 

Apply AB U/S 438 CrPC

Rocky,

 

The question is at what stage??????????????????

 

 

Regards,

Hi All,

 

Thanks for your reply, FIR has been registered but still I didn't get any summons from Police.

 

Hi Take AB for self only no matters how much names are in complaint and wait for summons dont feed police more than 10 k it helps you in getting bail.