In many cases we see lower courts granting AB but asking the applicant to surrender before a magistrate to get a regular bail.
The Hon Karnataka HC , refers to Sibbia case and states “…The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for a regular bail is contrary to the legislative intention..”
This case should be of help to many husbands applying for AB in 498a cases !!
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
CASE FROM JUDIS / INDIAN KANOON WEB SITE
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY 2015
BEFORE THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.8080 OF 2014
Vipin Nandan Varrier, Son of Vijay Kumaran T.S., Flat No.302, 3rd Floor, Box No.1, ARK Serene Country, Besides MVJ College of Engineering, Chennasandra, Whitefiled, Bangalore – 560 067. …PETITIONER (By Shri. Murthy D Naik, Advocate)
State of Karnataka Represented by Police Sub-Inspector, Hebbagodi Police Station, Attibele Circle, Bangalore. …RESPONDENT (By Shri. M. Narayana Reddy, State Public Prosecutor)
This Criminal Petition is filed under Section 439(1)(B) code of Criminal Procedure, 1973, praying to relax condition No.4 on page no.5 of the order dated 18.11.2014 passed in Crl.Misc.No.5418/2014 by the III Additional District and Sessions Judge, Bangalore Rural District, at Anekal.
This petition having been heard and reserved on 23.01.2015 and coming on for pronouncement of orders this day, the Court delivered the following:-
The petitioner is said to have been accused of offences punishable under Sections 494, 506 and 498A of the Indian Penal Code, 1860 (Hereinafter referred to as the ‘IPC’, for brevity), at the instance of his divorced wife, in case bearing Crime no.667/2014, said to have been registered by the Hebbagodi Police, Bangalore Rural District.
2. The petitioner is said to have approached the Court of the III Additional District and Sessions Judge, Bangalore Rural District, seeking anticipatory bail, as he was likely to be taken into custody in relation to the above case. The Court below is said to have granted anticipatory bail, while imposing certain conditions. One of the conditions was that the petitioner, in the event of his arrest and release by the Investigating Officer, shall surrender before the jurisdictional Court of the Magistrate and obtain regular bail. The petitioner is aggrieved by the said condition and has preferred this petition.
3. It is seen that this is not the first instance of the lower courts imposing such a condition in spite of the apex court having laid down clear guidelines as to the proper course of action for the courts in the matter of grant of anticipatory bail and the duration for which it is to be granted. It is hence necessary to restate the law as laid down in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011)1 SCC 694.
The Code of Criminal Procedure, 1898 did not contain any specific provision of anticipatory bail. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether the courts had an inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power.
The Law Commission of India, in its 41st Report (1969) and the 48th Report (1972), pointed out the necessity of introducing a provision in the Code of Criminal Procedure (Hereinafter referred to as the ‘CrPC’ for brevity) and recommended the same, to enable the High Courts and the Courts of Session to grant “anticipatory bail”.
It was evident from the Statement of Objects and Reasons for introducing Section 438 in the CrPC (1973) was to evolve a device by which an alleged accused was not compelled to face ignominy and disgrace at the instance of influential seeking to implicate their rivals in false cases. It was to recognise the importance of personal liberty and freedom in a free and democratic country. It pressed into service the age old principle that an individual is presumed to be innocent till he is found guilty by the court.
The Constitution Bench of the apex court in Gurubaksh Singh Sibbia v. State of Punjab, (1980)2 SCC 565, had comprehensively dealt with the scope and ambit of the concept of anticipatory bail and the following principles were laid down in that regard :
” (a) Section 438(1) is to be interpreted in the light of Article 21 of the Constitution of India.
(b) Filing of FIR is not a condition precedent to exercise of power under Section 438.
(c) Order under Section 438 would not affect the right of police to conduct investigation.
(d) Conditions mentioned in Section 437 cannot be read into Section 438.
(e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in the light of the circumstances of each case.
(f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re-examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.”
The following decisions, which were all rendered after the decision in Sibbia, were found to have been decided without reference to the ratio of the said Constitution Bench judgment and hence were contrary thereto as well as the legislative intent:
(i) Salauddin Abdulsamad Shaikh vs. State of Maharashtra, (1996)1 SCC 667,
(ii) K.L.Verma vs. State, (1998)9 SCC 348,
(iii) Adri Dharan Das vs. State of West Bengal, (2005)4 SCC 303,
(iv) Sunita Devi vs. State of Bihar, (2005)1 SCC 608, and
(v) Naresh Kumar Yadav vs. Ravindra Kumar, (2008)1 SCC 632.
While expressing that there could be no inflexible guidelines or a straitjacket formula that could be provided for grant of anticipatory bail, because all circumstances and situations of the future could not be visualized either for the grant or refusal of anticipatory bail, the following parameters were indicated to be considered while dealing with a petition for anticipatory bail:
“(i) the nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused’s likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 that court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complaint;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”
The above parameters were not to be understood as being exhaustive, as they were only illustrative.
It is accordingly laid down thus:
“94. The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.
95. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia case.
96. It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant on finding new material or circumstances at any point of time.”
4. The court, which grants the bail, has the right to cancel the bail according to the provisions of the General Clauses Act. But ordinarily, after hearing the Public Prosecutor, when the bail order is confirmed, then the benefit of the grant of bail should continue till the end of the trial of that case.
In the light of the above, the condition imposed by the court below, in the instant case on hand that the petitioner should approach the court of the jurisdictional magistrate and seek regular bail is contrary to the law laid down and the same stands cancelled.
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