Tag Archives: Anticipatory bail

Courts can’t impose onerous & unreasonable conditions (huge cash deposit) before bail !! Madras HC

in this case the lower courts ordered deposit of Rs 15000 by village labour (daily wage earners) and the HON MADRAS HC after considering various HC and SC cases decided that such onerous conditions cannot be imposed. the cases quoted by the HC are very important and strike at the very root of lower courts imposing such onerous conditions

This case should help husbands who are seeking AB in 498a, 406 cases filed by wife

The cases referred to should also make good reading

============================================

Before the Madurai Bench of Madras High Court

Date: 05-02-2015

Coram
The Hon?ble Mr.Justice S.Vaidyanathan

Crl.O.P.(MD)Nos.19196 of 2014
& Crl.O.P.(MD)Nos.19197 of 2014
&
M.P(MD)No.1 of 2014 in
Crl.OP.(MD)No.19196 of 2014

1.Amaldoss
2.Kannan
3.Meganathan
4.Saminathan
5.Santhana Raju            .. Petitioners in Crl.O.P.(MD)No.
19196 of 2014
1.Mathialagan
2.Tamilalagan
3.Karunanithi
4.Tamilarasan
5.Kalaiyarasan            .. Petitioners in Crl.O.P.(MD)No.
19197 of 2014

Versus

State,
Rep. by the Inspector of Police,
Patteeswaram Police Station,
Thanjavur District.                        .. Respondent

in both petitions Prayer These Criminal Original Petitions are filed under Section 482 of Cr.P.C., praying to set aside the second condition imposed by the learned Principal Sessions Judge, Thanjavur in his order, dated 14.10.2014 in Crl.M.P.No.3779 and 3827 of 2014.

!For Petitioners : Mr.M.Karunanithi ^For Respondents : Mr.P.Kandasamy Government Advocate (Crl. Side) for R1 Mr.B.Jameel Arasu for Intervenor :COMMON ORDER By order, dated 14.10.2014 in Crl.M.P.Nos.3779 and 3827 of 2014, while granting anticipatory bail to the petitioners herein, the learned Principal District and Sessions Judge, Thanjavur, apart from other conditions, imposed a condition, directing the petitioners to deposit a sum of Rs.15,000/- each before the learned Judicial Magistrate, Kumbakonam.

  1. Aggrieved by the said condition, the petitioners have come forward with the present petitions, seeking to set aside the same.
  2. The learned counsel for the appearing for petitioner would submit that the petitioners are agricultural coolies and they find difficulty even to eke out their day-to-day livelihood and hence, they are unable to comply with the condition imposed by the Court below in respect of making deposit of Rs.15,000/- before the learned Magistrate. He would contend that the learned Judge is not having jurisdiction to impose such condition and in fact there is no statutory provision nor any judicial pronouncement empowering the learned Judge to impose condition for depositing of money upon a person at the time of granting bail to him. Therefore, he contended that condition imposed by the Court below is onerous and it tantamounts to abuse of the process of the Court. In support of his contention, the learned counsel relied upon decisions of this Court, in ?Alluvdin versus Inspector of Police, Vandhavasi Police Station?(2001 Crl.L.J.2672); ?N.Sasikala versus Enforcement Officer, Enforcement Directorate, Madras?(1997 Crl.L.J.2120) and also of the Hon?ble Supreme Court reported in ?Ramathal & others versus Inspector of Police and another? (2009 Crl.L.J.2271).

  3. On the other, the learned Government Advocate (Crl.side) would contend that in cases where there would be no possibility of granting anticipatory bail, if the Court comes to the conclusion on facts and satisfied that the person is entitled to anticipatory bail on certain terms and conditions, the same should be not ordinarily interfered with by this Court.

  4. Chapter XXXIII of the Code of Criminal Procedure deals with the provisions as to ?Bail and Bonds?.

  5. Section 437 of Cr.P.C. empowers the authority of law to impose any condition while granting bail to any person accused of, which reads as under: “437. When bail may be taken in case of non-bailable offence. 1[(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but- (i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) Such person shall not be so released if 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: Provided that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that the shall comply with such directions as may be given by the court.] (2) If it appears to such officer or court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, 2[the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or court on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) 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, Chatter XVI or Chapter XVII of the Indian Penal Code 45 of 1860 or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the court may impose any condition which the court considers necessary- (a) In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) Otherwise in the interests of justice. (4) An officer or a court releasing any person on bail under sub-section (1), or sub- section (2), shall record in writing his or its 3[reasons or special reasons] for so doing. (5) Any court which has released a person on bail under sub-section (1), or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to Custody. (6) If, any case triable by a Magistrate, the trial of a person accused of any non bailable offence is not Concluded within a period of sixty days from the first date fixed for – taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non bailable offence and before Judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.”

  6. Sub-Section 2 of Section 438 envisages conditions which can be imposed while granting anticipatory bail, which as under: “438 (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 thinks fit, including – (i) A condition that the person shall make himself available for interrogation by a police officer 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 sub-section (3) of section 437, as if the bail were granted -under that section.”

  7. Section 440, 441 and 445 of Cr.P.C. are also relevant and they are extracted as under: ?440. Amount of bond and reduction thereof. (1) The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. (2) The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced. ?441. Bond of accused and sureties. (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. (2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge. (4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness. ?445. Deposit instead of recognizance. When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of officer may if in lieu of executing such bond. ?

  8. A careful consideration of the provisions of Sections 437(3) and 438(2) Criminal Procedure Code shows that conditions which can be imposed are primarily with a view to ensure availability of the accused during investigation, enquiry or trial and his non-interference with the course of justice. Other conditions which Court may think fit can also be imposed but idea should be to ensure his presence as and when required and his non- interference with the investigation, enquiry or trial.

  9. Section 440 Cr.P.C. denotes that the amount of every bond executed shall be fixed with due regard to the circumstances of the case and shall not be excessive. Section 441 Cr.P.C. reads that before any person is released on bail or released on his own bond, a bond for such sum of money as the Court thinks sufficient shall be executed by such person. Section 441 does not speak about deposit of any cash security. Only in certain contingencies, where the accused is unable to secure sureties for his release, he is permitted to deposit a sum of money or Government promissory Note as the Court may fix in lieu of executing such bond, under Section 445, Cr.P.C.

  10. Keeping in view of the above, the issue for consideration is whether the Court below can insist for deposit of money as a condition for grant of bail to the petitioners?

  11. In fact, this issue is no longer res integra as in catena of decisions, various High Courts as well as the Hon?ble Supreme Court have consistently held that imposing condition of depositing money is excessively onerous and unreasonable and such condition may even amount to denial of bail itself.

  12. In ?Sreenivasulu Reddy versus State of Tamil Nadu? reported in (2002) 10 SCC 653, wherein, this Court granted anticipatory bail to the accused on condition to deposit total Rs.50 crores apart from other conditions, which was also complied with by the accused, however aggrieved by imposition of such condition, the accused preferred appeal before the Hon?ble Apex Court. While dealing with the same, the Hon?ble Supreme Court had emphasized that while exercising jurisdiction under Section 438(2) of the Cr.PC, the Court ought only to impose such conditions/terms for enlarging an accused on bail as would ensure that the accused does not abscond. In para 6, it has been held as under: ?6. Having considered the rival submissions and the provisions of Section 438 Cr. PC, we are of the considered opinion that the Court while exercising jurisdiction under Section 438 Cr. PC, must bear in mind and be satisfied that the accused will not abscond or otherwise misuse liberty and this can be ascertained from several factors like conduct of the accused in the past, his assets in the country and so on. But, while granting such anticipatory bail, though the Court may impose such conditions as it thinks fit, but the object of putting conditions should be to avoid the possibility of the person hampering investigation. The discretion of the Court while putting conditions should be an exercise of judicial discretion. ?.

  13. In ?Sandeep Jain v. State of Delhi? reported in (2000) 2 SCC 66, wherein, a direction of the Metropolitan Magistrate, to deposit Rs. 2 lacs apart from furnishing of a bond of Rs. 50,000 with two solvent sureties as a condition precedent for bail, was held to be unreasonable. In ?Sheikh Ayub v. State of M.P.? (2004) 13 SCC 457, wherein, the Supreme Court deleted the direction to deposit a sum of Rs. 2,50,000/-, which was the amount allegedly misappropriated by the accused.

  14. In ?Shyam Singh v. State? reported in (2006) 9 SCC 169, wherein, the Hon?ble Supreme Court, has held in para 4 as under : ?4. We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs 2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law. Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police.?

  15. In ?Keshab Narayan versus State of Bihar? reported in AIR 1985 SC 1666, the Hon?ble Supreme Court held that the condition to furnish cash security with sureties for the likesum appears to be excessively onerous and such conditions may virtually amount to denial of bail itself.

  16. In ?Hussainara Khatoon (I) v. Home Secy., State of Bihar, reported in (1980) 2 SCC 81, the Hon?ble Supreme Court has held as under in para 3: ?3. Now, one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pre-trial detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. The Code of Criminal Procedure, even after its re-enactment, continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century and where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence, and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. It is here that the poor find our legal and judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor. The Legal Aid Committee appointed by the Government of Gujarat under the chairmanship of one of us, Mr Justice Bhagwati, emphasised this glaring inequality in the following words: ?The bail system, as we see it administered in the criminal courts today, is extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non-appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. The experience of enlightened Bail Projects in the United States such as Manhattan Bail Project and D.C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail is fixed by the Magistrate is not high, for a large majority of those who are brought before the courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount.?

  17. In ?Mahesh Chandra versus State of U.P.? reported in (2006) 6 SCC 196, wherein, while remitting the matter for fresh consideration, the Hon?ble Supreme Court set aside the order of the High Court of U.P., in and by which, as a condition for grant of anticipatory bail, the High Court has recorded the undertaking of the petitioners to pay to the victim daughter-in-law a sum of Rs. 2000 per month and failure to do so would result in vacation of the order granting bail. The Hon?ble Supreme Court observed that the parties cannot be made liable to deposit Rs.2000 per month for the maintenance for the victim and while deciding a bail application, it is not the jurisdiction of the High Court to decide civil disputes as between the parties.

  18. Therefore, the practice of imposing condition for depositing of money for granting the bail has been deprecated by the High Courts and the Hon?ble Supreme Court. Of course, while granting the bail, the Court of law is entitled to put certain conditions at its discretion, however, it should not be ignored that such conditions must be reasonable and judicious and should not be arbitrary. In fact, no provision in Code of Criminal Procedure contemplates cash deposit as a condition precedent for grant of bail, but may permit the person to deposit a sum of money in lieu of executing a bond and giving surety of one or two persons. It is needless to state that granting or denying the bail depending upon the circumstances of each case, is within the exclusive discretion of the Court of law or authority, however, such discretion should not be exercised arbitrarily. Once the court comes to the conclusion on the facts and circumstances of the case that a person is entitled to the benefit of bail, then no condition other than those enumerated in Section 437(3) or 438(2) can be imposed. Imposition of such unreasonable condition is not only beyond the purview of the provisions of Code of Criminal Procedure but also beyond the powers of the court. Discretion does not mean that it has no arena or boundary. No Court having howsoever absolute power can traverse beyond the arena carved out for it. Even absolute discretion does not admit element of arbitrariness or whimsicality or capriciousness.

  19. Having regard to the above, this Court is of the view that the condition imposed by the learned Principal Sessions Judge, Thanjavur in his order, dated 14.10.2014 in Crl.M.P.No.3779 and 3827 of 2014, while granting anticipatory bail to the petitioners, to deposit a sum of Rs.15,000/-, is onerous and unreasonable and hence, it is set aside.

Accordingly, these Criminal Original Petitions are allowed. Consequently, the connected Miscellaneous petition is closed.

Suk                            05-02-2015
Index: Yes/No
Internet:Yes/No
S.VAIDYANATHAN, J.

Suk

Advertisements

Courts can’t force husbands to pay #maintenance as condition for #Anticipatory #BAIL. Supreme Court !

In this case, the wife had filed a #498a , #406 cocktail on the husband. The husband and his parents approach the HC for #Anticipatory #bail. The HC initially sends the parties to #mediation. The mediation fails. then the HC imposes a #condition that the husband shall pay Rs 300,000 arrears and also pay Rs 12,500 p.m. as monthly maintenance as a condition for the bail.

The husband approaches the Hon Supreme court in appeal. The Hon Supreme court clearly states that courts CANNOT impose such conditions for payment of maintenance as part of the bail proceedings

The Apex court clarifies that ‘….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 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all….” The Apex court goes on to state that the conditions cannot be onerous and frustrate the very purpose of the bail “…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. ….”

The court very clearly states that “…. 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. …”

We hope this classic case helps harassed husbands who are seeking AB in 498a, 406 cases !!

=============================================================

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 344 OF 2009

(Arising out of S.L.P. (Criminal) No. 637 of 2008)

Munish Bhasin & Ors. … Appellants

Versus

State (Govt. of N.C.T. of Delhi) & Anr. … Respondents

J U D G M E N T

J.M. PANCHAL, J.

  1. Leave granted. The complainant (wife of first appellant) to whom notice was ordered on 25.01.2008 is impleaded as second respondent.
  2. Heard Counsel.

  3. The appellant (accused no. 1) assails the condition imposed by the High Court requiring him to pay a sum of Rs.12,500/- as maintenance to his wife and child while granting anticipatory bail to him and his parents with reference to the complaint filed by his wife for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Indian Penal Code.

  4. The marriage of the appellant was solemnized with Ms. Renuka on December 05, 2004. She has filed a complaint in November 2006, against the appellant and his parents for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Penal Code on the grounds that after marriage she was subjected to mental and physical cruelty for bringing less dowry and that her stri-dhan entrusted to them has been dishonestly misappropriated by them. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  5. Apprehending arrest, the appellant and his parents moved High Court of Delhi for anticipatory bail. The application came up for consideration before a Learned Single Judge of the High Court on 22.02.2007. The Learned Additional Public Prosecutor accepted notice and submitted that the matter was essentially a matrimonial dispute and therefore the parties should be referred to the Mediation and Conciliation Cell of the Delhi High Court. The Learned Judge agreed with the suggestion made by the Additional Public Prosecutor and directed the parties to appear before the Mediation and Conciliation Cell of the Delhi High Court on March 02, 2007. The case was ordered to be listed on 10.05.2007. The Learned Judge further directed that in the event of arrest of the appellant and his parents, before the next date of hearing, they shall be released on bail on their furnishing personal bond in the sum of Rs.25,000/- each with one surety of like amount to the satisfaction of the Investigating Officer/ Arresting Officer concerned, subject however, to the condition that the appellant and his parents shall surrender their passports to the Investigating Officer and shall file affidavits in the Court that they would not leave the country without prior permission of the Court.

  6. From the records, it appears that the conciliation proceedings failed and therefore the bail application was taken up for hearing on merits. On representation made by the wife of the appellant, the counsel of the appellant was directed to produce appellant’s salary slip. Accordingly, the salary slip of the appellant was produced before the Court which indicated that the appellant was drawing gross salary of Rs.41,598/- and after deductions of advance tax etc., his net salary was Rs.33,000/-. The Learned Single Judge of the High Court took the notice of the fact that the appellant had the duty to maintain his wife and the child and therefore as a condition for grant of anticipatory bail, directed the appellant, by the order dated 07.08.2007 to pay a sum of Rs.12,500/- per month by way of maintenance to his wife and child. The Learned Single Judge also directed to pay arrears at the rate of Rs. 12,500/- per month from August 2005, that is Rs. 3,00,000/- within six months. The imposition of these conditions for grant of anticipatory bail is the subject matter of challenge in the instant appeal.

  7. 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 subsection (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.

  8. 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 438 of 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 subsection (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 438 of 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.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  9. For the foregoing reasons, the appeal succeeds. The direction contained in order dated August 07, 2007 rendered by Learned Single Judge of Delhi High Court in Bail Application No. 423 of 2007 requiring the appellant to pay a sum of Rs.12,500/- per month by way of maintenance (both past and future) to his wife and child is hereby deleted. Rest of the directions contained in the said order are maintained. It is however clarified that any amount received by the wife of the appellant pursuant to the order of the High Court need not be refunded by her to the appellant and will be adjusted subject to the result of application for maintenance filed by wife of the appellant under Section 125 of the Code before the appropriate Court.

  10. The Appeal is accordingly disposed of.

…………………………J. [R.V. Raveendran]

…………………………J. [J.M. Panchal]

New Delhi;

February 20, 2009.


*****************************disclaimer**********************************
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. 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 with necessary Emphasis, Re formatting


Don’t convert BAIL 2 recovery proceedings & civil case 2 criminal case! Excellent Delhi HC Anticipatory

An elderly couple approach the Delhi HC seeking bail. Their son’s failed SECOND marriage is the cause of their misery. The young couple have met in London and married, stayed and separated in Dubai but the daughter in law has filed 498a etc on the elderly in-laws. The daughter in law has alleged gifts worth crores of rupees without much proof. The lower court has tried to make bail concomitant with recovery of money / promised settlement etc !! The Hon Delhi HC sees thru the entire matrix, appreciates that the elders have had little or NO role in the lives of the couple. The Hon orders that “…Since allegations in the complaint are to the effect that jewellery and gifts worth crores were given by the parents and relatives of the complainant, instant case would require a prior investigation by the investigating officer before petitioners are made to account for the gifts, whether at all the family of the complainant had the means to shower gifts of such magnitude…..” The court also reiterates that “…Case is thus made to admit petitioners to anticipatory bail. While so directing, I am conscious of the failed compromise talks before the learned Additional Sessions Judge but I cannot ignore the fact that proceedings for bail cannot be converted into recovery proceedings. ….” and thus grants bail to the elders !!

Please note that this case is from 2007 !! yes approx 9.5 years ago !! the court has in many places says that the case against the elders is unwarranted ! the Hon court refers to multiple decisions where 498a has been misused including Sushil Kumr sharma case !!

Still in 2017 there seems to be NO let up to the number of false cases and ways to milk men !!

====================================

Delhi High Court

Smt. Surjit Kaur Chopra vs State And Anr. [Along With Bail … on 21 August, 2007

Author: P Nandrajog

Bench: P Nandrajog

JUDGMENT Pradeep Nandrajog, J.

FIR No.6/2007 dated 3.1.2007 under Section 498A/406 IPC PS Hazrat Nizamuddin.

  1. Vide Bail Application No. 1711/2007, Smt. Surjit Kaur Chopra seeks anticipatory bail. Vide Bail Application No. 1716/2007, Sh. Harbhajan Singh Chopra seeks anticipatory bail. The 2 applicants are the mother-in-law and father-in-law respectively of the complainant, Arti.
  2. At the outset, I must refer my displeasure at the manner in which Bail Application No. 1711/2007 has been drafted by learned Counsel for the petitioner.
  3. The same is a verbatim copy of Bail Application No. 1716/2007.
  4. Use of computers does not mean that learned members of the Bar would not apply their mind. Human beings cannot become computers and start operating themselves by clicking a mouse.
  5. Little realizing that in Bail Application No. 1716/2007 reference to the applicant was made as father of the husband of the complainant i.e. as father-in-law of the complainant, even Smt. Surjit Kaur Chopra has been referred to as father of the husband of the complainant i.e. father-in-law of the complainant.
  6. In the instant case, the misdescription may be trivial. But in large number of cases I notice that the misdescription is not trivial, more so, when disputes relate to complaints under Section 138 of the Negotiable Instruments Act 1881. In said cases description of the accused with reference to the role assigned becomes relevant. Precious judicial time is wasted in identifying who is being referred to and in what context reference is being made pertaining to persons accused of offence and who have filed quashing petitions challenging the summoning order.
  7. It is hoped and expected that learned members of the Bar would justify them being referred to as ‘learned Counsel’. Their being learned must be reflected in their pleadings.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  8. Referring to the facts, why else would a father-in-law and mother-in-law be seeking bail? Of course, when their daughter-in-law has filed a complaint resulting in registration of FIR under Section 498A/406/34 IPC. This has happened in the instant case.
  9. Since issue of anticipatory bail has to be decided, reference to the FIR becomes necessary.
  10. Touching upon the salient features of the FIR, complainant Arti, stated that she met Jitender Singh Chopra, son of the applicants in London in July 2004 through common friends. She states that the two met a number of times and around 3rd week of September 2004 decided to get married in Dubai on 30.9.2004. She stated that she and Jitender Singh Chopra came to Delhi and got engaged. That at the time of engagement presents worth Rs. 15 lakhs were gifted by her parents to the in-laws and relatives of Jitender. That her in-laws gave her jewellery worth Rs. 40 lakhs. That at the asking of her prospective mother-in-law, for relatives who were not present at the engagement, her mother sent additional gifts worth Rs. 5 lakhs. That marriage between the complainant and Jitender was solemnized at Dubai on 27.10.2004 as per Hindu rites and customs. At the time of marriage her mother, relatives and friends gave gifts worth Rs. 70 lakhs. Her in-laws gifted her jewellery worth Rs. 90 lakhs. Next day her mother-in-law took away the jewellery for safe keeping. She and her husband came to Delhi on 3.11.2004 and stayed at the farm house of the in-laws. The couple celebrated their first Deepawali. On said function her relatives gave gifts worth Rs. 40 lakhs to her husband. That her mother and her relatives gave her ancestral jewellery worth Rs. 1.75 lakhs at said function. That her in-laws gave her expensive gifts and jewellery worth Rs. 80 lakhs. That when they were at Delhi her brother-in-law tried to force himself upon her. That she was disgraced by the family of her in-laws who stated that they expected that she would bring a Mercedes car in her dowry. That when the couple left for their honeymoon her husband compelled her to drink excessively as also to indulge in vulgar sexual acts. That since it was her second marriage she did not speak to anyone. That on 18.1.2005 she and her husband went back to Dubai. For said trip her husband demanded Rs. 25 lakhs from her mother. Her mother arranged Rs. 5 lakhs and gave the same to her husband. That her husband demanded more money. Her mother paid Rs. 15 lakhs. That she came back to Delhi on 29.12.2005 and in spite of requests to hand over her jewellery, none was being returned to her. That her father-in-law wanted her parents to transfer ownership rights of 2 floors of their house in name of her husband. That her mother-in-law had retained her jewellery.
  11. According to the petitioners the marriage at Dubai was financed by the petitioners. Entire stay of the family of the bride was paid for by the petitioners. That after the wedding, the newly wed came to Delhi to celebrate their first Deepawali and went back to Dubai in February 2005. They took on rent a villa and resided separately from the petitioners. That the couple separated due to temperamental differences. That their son sought divorce in London due to irreconcilable differences. That the FIR was a counter blast to the divorce petition filed by their son.
  12. Before dealing with the rival submissions on the issue whether petitioners should be granted anticipatory bail or not, it has to be noted that petitioners as also their second son i.e. the brother-in-law of the complainant sought anticipatory bail before the learned Additional Sessions Judge. Attempts were made to compromise the matter and in full and final satisfaction of all claims of the complainant not only the FIR be withdrawn but the couple could agree for an amicable settlement. Order dated 29.3.2007 passed by the learned Additional Sessions Judge records that a settlement was arrived at pursuant whereto complainant would be paid Rs. 4 crores in cash and a flat at DLF Gurgaon worth Rs. 60 lacs would be transferred in her name. Thereafter, the talks broke down inasmuch as offer was reduced to Rs. 2 crores.
  13. Petitioners when charged with attempting to wriggle out of an agreed settlement explained that their younger son was briefing the counsel and he was receiving instructions from the husband of the complainant for the reason any payment under the settlement had to be financed by the husband of the complainant. That unfortunately, their son i.e. husband of the complainant could not firm up his mind and for said reason settlement failed.
  14. Shri K.T.S. Tulsi, learned senior Counsel for the applicants urged that proceedings for grant of anticipatory bail cannot be converted into a recovery proceedings. Learned senior Counsel urged that the anxiety of the Court to try and effect a settlement between the warring couple may be a laudable act but is alien to the exercise of jurisdiction while deciding an application seeking grant of anticipatory bail. Learned senior Counsel urged that the well known parameters viz. gravity of the offence, seriousness of the allegations constituting the offence, possibility of the accused absconding or threatening witnesses of the prosecution, inherent probabilities, for and against the accused are some of the factors which have to be considered by the Court while deciding an application for grant of anticipatory bail.
  15. Expanding the argument, learned senior Counsel submitted that documents annexed as Annexure-C to the petitions conclusively establish that the petitioners paid the entire bill at Dubai when marriage took place. Drawing attention to Annexure-D, learned senior Counsel urged that the same evidences that the newly married couple set up separate residence in Dubai. As regards the petitioners, learned senior Counsel urged that they were residents of Delhi. Their son was settled abroad. Except for participating in the joyous occasion of the marriage of their son and showering their blessings and gifts upon the newly wed as also to finance the marriage, the two had no role to play in the matrimonial life of the couple. Learned senior Counsel further urged that allegations in the FIR are alien to the social norms of the society from which complainant, her family and the petitioners come from. Learned senior Counsel explained that main items are gifted to the couple at the time of their marriage. Thereafter, as and when festive occasions occur, small gifts are exchanged. Learned senior Counsel urged that it was unbelievable that at the time of Deepawali celebrations after the couple got married, complainant’s family members would gift to their daughter and her in-laws, gifts worth Rs. 1.75 crores. Learned senior Counsel further submitted that the allegations of dowry demand are against the husband i.e. the son of the petitioners. Allegations of mental and physical cruelty are against the husband save and except a vague allegation that on one occasion father-in-law threw a plate at the complainant and abused her as a bitch. Learned senior Counsel stated that the two allegations pertaining to dowry demand against the father-in-law viz. that he expected his daughter-in-law to bring a Mercedes car and a demand for ownership rights of 2 floors in her parent’s house at Sunder Nagar are false. Learned senior Counsel submitted that the gravement of the allegation against the mother-in-law is that she retained the jewellery of the complainant.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  16. Learned senior Counsel urged that in view of the fact that the complainant and her husband had set up their matrimonial house at Dubai, a residence separate from that of the petitioners, considering the social background of the family of the complainant as also the petitioners it was unbelievable that the complainant would have handed over her jewellery to her mother-in-law.
  17. Fulcrum of opposition by learned Counsel for the complainant centered around the orders passed by the learned Additional Sessions Judge regarding a settlement between the parties from which petitioners back tracked. Learned Counsel submitted that the said settlement evidenced the acknowledgment by the petitioners that the complainant had to be recompensed. Learned Counsel submitted that the jewellery articles of the complainant have yet to be recovered. Counsel submitted that the complainants have started dissipating their assets. Thus, counsel urged that no case is made out to grant anticipatory bail to the petitioners.
  18. It is not in dispute that the instant marriage was the second marriage of both parties. Thus, both would be presumed to be aware of not only their matrimonial obligations but even the matrimonial laws. Judicial authorities are replete with a caution by the Courts that the unfortunate tendency to rope in all family members of the in-laws is a growing trend which has two side effects. Firstly, innocent persons suffer the trauma of a criminal prosecution and secondly, even the accused get acquitted for the reason, false implication of innocent persons is followed by presentation of fabricated evidence before the Court. So inextricably interwoven is truth with lies that truth cannot be segregated from lies resulting in benefit of doubt being given even to the accused persons.
  19. More often than not, pertaining to dowry, Courts are faced with a dilemma inasmuch as tax avoidance is the norm in India. Huge volume of black money in circulation finds expression in ostentatious marriages. But when called upon to prove that the family had enough assets to justify the stated gifts gifted at the time of marriage, family members of the girl side have no answers. They cannot establish the means to justify their capacity to shower gifts worth crores.
  20. In the instant case, before the in-laws of the complainant can be called upon to account for the gifts given by the parents of the girl, the parents of the girl would have to establish their means and their capacity to gift items worth Rs. 3 crores to their daughter and her in-laws.
  21. As noted above, gravement of the allegations are directed principally against the husband. No doubt, there is reference against the petitioners pertaining to dowry demand and retention of jewellery, but, as noted above, allegations of dowry demand are against the father-in-law and not against the mother-in-law. Vice versa, allegations pertaining to retention of the jewellery of the complainant is against the mother-in-law and not the father-in-law. Thus, if at all, father-in-law may be answerable to a charge under Section 498A IPC. If at all, mother-in-law may be answerable for a charge under Section 406 IPC.
  22. Qua the mother-in-law a circumstance which stands out is that her son and her daughter-in-law had a separate residence at Dubai. The couple was married at Dubai. Whatever may be the jewellery gifted to the complainant at the time of marriage, there is no material on record that when she along with her husband came to India they made a declaration to the Customs Authority that personal jewellery worth crores was being brought by her i.e. the complainant to India. Greater probability would be that either jewellery of the value alleged to be gifted to her by the complainant was not gifted to her, or if gifted, the same was in her custody at Dubai.
  23. . Pertaining to the father-in-law I find that the allegations are general. It is not stated in the complaint that because father-in-law desired that the complainant should bring a Mercedes car he i.e. the father-in-law took vengeance against the complainant. What is stated in the FIR is that the father-in-law commented that he expected that the complainant would bring as part of dowry a Mercedes car.
  24. Prima facie, it is one thing to have a desire and express the same. It is altogether another thing to raise a demand as per the desire.
  25. Allegation of mental cruelty against the father-in-law pertains to an alleged incident when according to the complainant she served cold food to her father-in-law. Prima facie, said allegation of cruelty does not relate to a dowry demand.
  26. . The only other allegation pertaining to transfer of 2 floors in the house of the complainant’s parents at Sunder Nagar is without any particulars i.e. the day or the month when said demand was raised.
  27. In the report published as Indian Oil Corporation v. NEPC India Ltd. in para 13 the Hon’ble Supreme Court lamented as under: 13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests o lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
  28. In para 19 of the report published as Sushil Kumar Sharma v. Union of India the Supreme Court observed as under:  19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to the trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentional provision. Merely because the provision is constitutional and intra vires, does not give a license to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike a the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin’s weapon. If the cry of “wolf” is made too often as a prank, assistance and protection may not be available when the actual “wolf” appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalized a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.
  29. In the decision dated 23.2.2007 in Crl.M.C. No. 7262/2006 Neera Singh v. State and Ors. a learned Single Judge of this Court had pains to note as under: 4. Now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with. Rule 2 of the Dowry Prohibition (Maintenance of List of Presents to the Bride and Bridegroom) Rules, 1985 reads as under: 2. Rules in Accordance With Which Lists of Presents Are to Be Maintained. – (1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride. (2) The list of presents which are given at the time of the marriage to the bridegroom shall be maintained by the bridegroom. (3) Every list of presents referred to in Sub-rule (2)-(a) shall be prepared at the time of the marriage or as soon as possible after the marriage; (b) shall be in writing; (c) shall contain: (i) a brief description of each present; (ii) the approximate value of the present; (iii) the name of the person who has given the present; and (iv) where the person giving the present is related to the bride or bridegroom, a description of such relationship. (d) shall be signed by both the brides and the bridegroom. 5. The Metropolitan Magistrate should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statements of the complainant, without any verification that a large number of false complaints are pouring in.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  30. Admittedly, neither complainant nor her family members have complied with Rule 2 of the Dowry Prohibition (Maintenance of List of Presents to the Bride and Bridegroom) Rules 1985.
  31. Since allegations in the complaint are to the effect that jewellery and gifts worth crores were given by the parents and relatives of the complainant, instant case would require a prior investigation by the investigating officer before petitioners are made to account for the gifts, whether at all the family of the complainant had the means to shower gifts of such magnitude.
  32. I note that the husband of the complainant is paying to her a monthly maintenance of Rs. 1 lakh.
  33. Learned Counsel for the State did not urge that the petitioners are not cooperating with the IO.
  34. The special circumstances of the case may be summarized:
    • (a) Marriage is a love marriage and took place at Dubai. There is prima facie evidence that marriage expenses were borne by the in-laws of the complainant.
    • (b) The young couple took up separate residence at Dubai and stayed their after the marriage till they came to India to celebrate their first Deepawali festival. The complainant stayed with her in-laws for about 10 days. The couple departed for their honeymoon.
    • (c) Allegations in the FIR are primarily directed against the husband. Prima facie it appears to be a case of temperamental difference between the husband and the wife.
    • (d) There are no allegations of dowry demand against the mother-in-law. Allegation against her is of retaining the jewellery gifted by her parents as stated by the complainant to be in the value of over Rs. 2 crores. There is no evidence that jewellery of such magnitude was gifted.
    • (e) Allegations of dowry demand against the father-in-law only relate to transfer of ownership rights of 2 floors in a property at Sunder Nagar in the name of the husband of the complainant. The allegation is of a general nature. The time, date and month of demand has not been specified.
    • (f) The couple separated at Dubai. The petitioners did not have a joint residence with the complainant and thus could not be in possession of her jewellery.
  35. Case is thus made to admit petitioners to anticipatory bail. While so directing, I am conscious of the failed compromise talks before the learned Additional Sessions Judge but I cannot ignore the fact that proceedings for bail cannot be converted into recovery proceedings. I find prima facie justification of the petitioners that their younger son was briefing the counsel and was informing the counsel what was being consented to by the son of the petitioners. If the son of the petitioners back tracks from his commitment, petitioners cannot be faulted with.
  36. I additionally note that the complainant is being paid a monthly maintenance of Rs. 1 lakh by her husband.
  37. Petition stands disposed of directing that on the petitioners surrendering their passport to the Investigating Officer and cooperating at the inquiry to be conducted by the Investigating Officer, in the event of the petitioners being arrested by the IO, the petitioners would be released on bail by the IO on the petitioners furnishing a personal bond of Rs. 1,00,000/- each with one surety each in the like amount to the satisfaction of the IO in the above captioned FIR.
  38. Needless to state, the petitioners would join the investigation as and when required by the IO.
  39. Copy of the order be supplied dusty to learned Counsel for the petitioners.


*****************************disclaimer**********************************
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. 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 with necessary Emphasis, Re formatting
*******************************************************************************

 

Wife runs away in ’09. Elders forced 2 ‘accept her with diginity & honour’ in ’16 for bail! Mad Mad 498a

A woman has deserted matrimonial house in 2009 & has happily filed 498a cocktail (probably in 2015 / 2016). This 498a woman is NOT present in the current hearing as well. She doesn’t seem to be represented by any lawyer (only AP for the state on the opposite side) . However to get their bail and freedom, elderly parents of the husband are forced to say “That the petitioners are ready to kept the opposite party no.2 with full human dignity and honour. Even the husband (Suman Mishra) is ready to kept his wife (opposite party no.2) with full love and affection…..”

This is worse than being a slave… !! Don’t men have ANY dignity in this country ? why is there such a stipulation for a bail that too when there is NO evidence of physical violence the case is not properly tried  ? and no signs of her for so many years ?? why are men and their elders dragged to courts JUST on the words of a wife ? that too a deserter ? should such a stipulation be necessary at this stage BEFORE any evidence, inquiry or trial ?


IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.19892 of 2016
Arising Out of PS.Case No. -448 Year- 2009 Thana -COMPLAINT CASE District- SUPAUL


1.Lakhan Mishra, Son of Late Rajbanshi Mishra
2. Sumitra Devi @ Bibha Devi @ Sumitra Devi, Wife of Lakhan Mishra
….. …. Petitioner/s
Versus
1. The State of Bihar.
2. Meena Devi Daughter of Shobha Kant Jha, Resident of village- Bhim

Nagar, P.S. Birpur District- Supaul….. …. Opposite Party/s
http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com


Appearance :
For the Petitioner/s : Mr. Baidya Nath Thakur, Advocate
For the Opposite Party/s : Mr. Sanjay Kr. Tiwary(App)


CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH

ORAL ORDER

2 04-05-2016 Heard learned counsels for the petitioners and the State.

The petitioners being parents of the husband of the complainant are apprehending arrest in a complaint case wherein process has been directed to be issued after cognizance being taken for the offences punishable under Sections 498A, 323, 34 of the Indian Penal Code.

Basic accusation is of torture.

Learned counsel for the petitioner submits that marriage of the complainant with son of the petitioners was performed in 2004 when the complainant deserted the matrimonial house in 2009. The petitioners and the husband of the complainant are ready to keep the complainant with full dignity and honour. A statement to that effect has been made in paragraph 9 of the petition which reads as follows :- “That the petitioners are ready to kept the opposite party no.2 with full human dignity and honour. Even the husband (Suman Mishra) is ready to kept his wife (opposite party no.2) with full love and affection…..”. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

It is further submitted that the thrust of accusation is against the husband of the complainant and accusation levelled against the petitioners are omnibus and general.

Considering the aforesaid facts, let the above named petitioners be released on anticipatory bail, in the event of arrest or surrender before the learned Court below within a period of 12 weeks from today, on furnishing bail bond of `10,000/- (ten thousand) each with two sureties of the like amount each to the satisfaction of the learned CJM, Saharsa in connection with Complaint Case No.448 C/2009, subject to the conditions as laid down under Section 438(2) Cr.P.C.

(Dinesh Kumar Singh, J) Ashwini/-

U T

*****************************disclaimer**********************************
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. 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 with necessary Emphasis, Re formatting
*******************************************************************************

 

Woman comes up with rapecase 15yrs aftr alleged incident & man gets Anticipatory from SC! Good AB case

Rape is a very very serious offense. We believe that Rape, IF it has occurred and is proven, should be punished strictly and in accordance with law. There should be NO lenience or pardon in cases proven beyond reasonable doubt. However we also feel that false, frivolous and vexatious rape complaints that come up decades after the original event and complaints that are patently false (IF and when proven false ) should be made punishable, with the same sentance as rape is punishable. The false accusers should know and feel the pain of the falsely accused

Here is the case of a woman who comes up in 2010 to claim she was raped in 1997 – 1998. Parties are neighbors and seem acquainted to each other. The woman originally complains of misbehaviour, FIR is filed circa 2001, lower court keeps the case pending / undecided for many years and then in 2010 as the case is still undecided, she tries to add rape (sec 376) to the case. Man seeks bail, the case slowly moves up and reaches the Hon. Apex court. The Apex court appreciates the case on hand, expounds the law on anticipatory bails and finally grants bail to the man !!

A good case to use for men seeking Anticipatory bail !!

Excerpts :
Initial FIR, case meanders, then woman adds 376 to the case !! “……. On the basis of statement made on 31.05.2001, F.I.R. was registered and charge under Section 506(2) of Indian Penal Code (IPC) was framed in the year 2001. The appellant was admitted to bail in the said case. Trial has proceeded which has not made much headway for number of years. In the year 2010, the prosecutrix made an application for addition of charge under Section 376 IPC as well. The Metropolitan Magistrate held that the said application should be taken into consideration only after chief examination of the complainant. The prosecutrix challenged the said order before the Court of City Session Judge at Ahmedabad. The matter was remanded back to the Metropolitan Magistrate with a direction that the application shall be heard afresh in its entirety after giving opportunity to both parties. On 31.03.2012, the Metropolitan Magistrate directed the Police to carry out special investigation under Section 173(8) of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’). Being not satisfied, the parties challenged the above order. The matter travelled up to this Court wherein certain directions were issued. Ultimately, the Police filed a revised chargesheet stating that a prima facie case under Section 376 IPC was also made out……..”

The court explains the process to be followed
“…..(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.

(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.

(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail. …….”

and the Honourable court goes on to add

“……(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations 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 anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.

(vi) 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.

(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.

(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.

(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case…..”

and grants Anticipatory bail to the accused

*****************************disclaimer**********************************
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. 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 with necessary Emphasis, Re formatting
*******************************************************************************

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1134-1135 OF 2015
[arising out of Special Leave Petition (Crl.) Nos. 6028-6029 of 2014]

BHADRESH BIPINBHAI SHETH                    …..APPELLANT(S)
VERSUS
STATE OF GUJARAT & ANOTHER                  …..RESPONDENT(S)

Bench: A.K. Sikri, Rohinton Fali Nariman

J U D G M E N T :  A.K. SIKRI, J.

Leave granted.

The appellant herein, in these appeals, challenges the validity of the judgment dated 18.07.2014 passed by High Court of Judicature at Gujarat cancelling the anticipatory bail which was granted to the appellant by the Additional Sessions Judge, Court No.16 of Ahmedabad City Sessions Court.

Before coming to the factual narrative of a long drawn event that has taken place in respect of criminal trial pending against the appellant, we would like to state, in capsiculated manner, the circumstances under which the matter has landed up in this Court.

The appellant and respondent No.2 (hereinafter referred to as the ‘prosecutrix’) were neighbours at the relevant time and known to each other. On 29.05.2001, the prosecutrix wrote a complaint to the Assistant Police Commissioner, Crime Branch, Gaekwad Haveli, Ahmedabad City alleging the harassment that was meted out to her by the appellant over a period of time. Allegations of rape, emotional blackmail and threats were levelled against the appellant therein. After two days i.e. on 31.05.2001, her statement was recorded by a Police officer of the concerned Police Station wherein she again levelled the allegations of maltreatment, blackmail etc. However, in this statement of hers, which was recorded by the Investigating Officer (I.O.), allegations of rape were conspiciously missing. On the basis of statement made on 31.05.2001, F.I.R. was registered and charge under Section 506(2) of Indian Penal Code (IPC) was framed in the year 2001. The appellant was admitted to bail in the said case. Trial has proceeded which has not made much headway for number of years. In the year 2010, the prosecutrix made an application for addition of charge under Section 376 IPC as well. The Metropolitan Magistrate held that the said application should be taken into consideration only after chief examination of the complainant. The prosecutrix challenged the said order before the Court of City Session Judge at Ahmedabad. The matter was remanded back to the Metropolitan Magistrate with a direction that the application shall be heard afresh in its entirety after giving opportunity to both parties. On 31.03.2012, the Metropolitan Magistrate directed the Police to carry out special investigation under Section 173(8) of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’). Being not satisfied, the parties challenged the above order. The matter travelled up to this Court wherein certain directions were issued. Ultimately, the Police filed a revised chargesheet stating that a prima facie case under Section 376 IPC was also made out. In view of addition of charge under Section 376 IPC, the Magistrate passed the order on 25.04.2013 for committal of proceedings to the Sessions Court and taking the appellant into custody. However, execution of this order for taking the appellant into custody was stayed till 07.05.2013. During this period, the appellant moved the City Sessions Court No.16 at Ahmedabad for grant of anticipatory bail which was ultimately granted on 18.05.2013. Against this order of grant of anticipatory bail, the prosecutrix filed criminal revision petition which has been allowed by the High Court vide impugned order dated 18.07.2014 cancelling the anticipatory bail granted to the appellant. As pointed out above, it is the justification and legality of this order which is in question before us in the instant appeals.

The aforesaid brief resume depicts that the charge was framed against the appellant initially in the year 2001 only under Section 506(2) of IPC. Insofar as charge under Section 376 of IPC is concerned, it is added only in the year 2014. Further, the original charge was framed under Section 506(2) IPC on the basis of the statement recorded on 31.05.2001 which was treated as FIR and which did not contain the allegation of rape. If one has to go by these facts, coupled with the fact that allegation of rape is of the year 1997-98, one may not find fault with the order of the Additional Session Judge granting anticipatory bail. However, the impugned order passed by the High Court whereby the anticipatory bail order of the Additional Session Judge is cancelled, does not take the matter in such a simplistic manner and, therefore, a detailed discussion on the issue has become imperative. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The High Court took note of the circumstances which led to the addition of charge under Section 376 IPC at a belated stage. Thus, it would be necessary to take stock of those detailed events and thereafter decide as to whether the order of the High Court is sustainable or not. These facts are recapitulated with elaboration which is absolutely necessary for our purposes, as under:

As mentioned above, before registration of the FIR on 31.05.2001 on the basis of the statement, the prosecutrix had filed a complaint on 29.05.2001 before the Assistant Commissioner of Police, Crime Branch. In this complaint, she stated that she is a housewife and had been residing at 1, Navpad Tenement, Opposite Nava Vikas Gruh, Behind Opera for 1½ years. She further mentioned that prior to shifting to this place, she was residing with her in-laws at Sanand for 10 years. She was married, with three children, and her husband was a Jeweller. She alleged in the complaint that about 2½-3 years prior thereto, she had gone to C.N. Vidhyalaya where her daugher Devel was studying. To return home, she was to catch a Bus. When she was standing at the Bus Stand, the appellant, who was her neighbour, passed through that place in his car and on seeing the prosecutrix, he asked her to sit in the car as he was also going home. Though, she initially refused but thereafter she sat in the car being unaware of his malafide intentions. Thereafter, he took the car to some uninhabited place near Telav Village, beat her and forcefully raped her. He also threatened her not to narrate the above incident to anybody. Being scared of these threats, she did not tell the incident to anybody. Taking benefit of the circumstances, after one month he repeated the act of rape by giving the threat that if the prosecutrix did not agree, he would tell her husband and others. He took her to Hotel Ellis Town and raped her against her wishes. After that, he threatened her of dire consequences saying that he had taken her photographs. This way he continued to keep relations with the prosecutrix. This complaint further states that she shifted to Ahmedabad but even after coming to Ahmedabad, he started sending letters with the threat to defame her. At that stage, she told her husband and in-laws. She went to Jyoti Sangh, a NGO and encouraged by their support, she lodged the complaint of continuous harassment on the part of the appellant.

On 31.05.2001, her statement was recorded in the Police Station by the IO in which the allegations of misbehaviour by the appellant are contained and the entire statement reads as under:

“The plaintiff Manishaben dictates that though the complaint is
lodged against the defendant Bhadresh, he is not impoved till today.
Our condition is becoming worst day by day. In these two days,
Bhadresh is making horrible face reading while our access and is
doing abusive and filthy behaviour. Yesterday, during the night hours
at about 8.15 hours, mother of Bhadresh was speaking in a very loud
tone in a way that I can hear the same as they are residing in front
of us that we will pay maintenance and Bhadresh himself was speaking
like this and telling me to live as his KEPT is also speaking like
this. He is laughing in a satire manner in front of my house and he
is also behaving with my husband in a abusive manner which could not
be borne or disclosed. At this time, when we left from Sanand to come
to Ahmedabad, workman of Bhadresh was chasing us and was behind us
for about 3 to 4 km and I do not know if any other associates were of
him or not going ahead, but his associates are remaining present
surrounding me in a manner that he was keeping our watch chasing us
even though I myself or my husband were not speaking anything. Now, I
am worried about my daughter who is growing and becoming young
because Bhadresh is also looking to her with bad intention. His
intention appears to be mal.

I have dictated the above statement in full sound state of mind and
without any undue pressure.

Before me                   Sd/- Manish K Mehta
Vandana Patva               Date: 31.05.2001
31.05.2001”

During preliminary inquiries, the Police recorded the statements of counsellors of Jyoti Sangh who confirmed that the prosecutrix had made the statement to them regarding alleged rape by the appellant. Be that as it may, the FIR was registered only under Section 506(2) of IPC on 31.05.2001 bearing C.R. No.II. 3009/2001 and on that basis, charge was framed only under the aforesaid Section on 25.06.2001. Further for one reason or the other, the prosecution case even under the said charge did not make any substantial progress.

On 07.12.2010, an application was moved by the prosecutrix for amending the charge by including the offence under Section 376 IPC as well on the basis of complaint dated 29.05.2001 and treating the same as FIR. Initially, the Metropolitan Magistrate did not agree with this request and passed an order to the effect that till the examination-in-chief of the prosecutrix was recorded, it was not justifiable to amend/alter the charge. However, in the revision petition filed against that order, the Sessions Court remanded the case for fresh consideration. After remand, the order dated 31.03.2012 was passed by the Metropolitan Magistrate directing further investigation under Section 173(8) of the Code implying thereby that the necessity of framing of such charge would depend upon the investigation carried out by the Police. Without stating the details, it suffices to mention that the matter was taken by all the parties to the Sessions Court and then to the High Court. Thereafter, the prosecutrix even came up to this Court by way of SLP (Crl.) No.636/2013 against the order dated 23.10.2012 passed by the High Court which had upheld the order of the Magistrate who had already ordered further investigation. Said SLP (Crl.) No.636/2013 was disposed of on 04.02.2013 taking note of the fact that though the Metropolitan Magistrate had ordered further inquiry by the Police on 31.03.2012 with direction to submit the report within four weeks, no such report had been submitted till that date. On that basis, following order was passed: “We are informed that till today the police has not submitted the final report pursuant to the order passed by the Magistrate. If that is so, we are both surprised and pain at the inaction of the police and we direct the Investigating Officer of Criminal Case No. 51 of 2011, pending before the Metropolitan Magistrate, as directed by the Magistrate, and submit the final report within four weeks from the date of receipt/production of a copy of this order before him.

In view of the above direction, the petitioner does not wish to press this special leave petition any longer. It is dismissed as not pressed.” Thereafter, the Police completed the investigation and submitted the report. The Police filed the chargesheet adding Section 376 of the IPC against the appellant and on that basis, an order was passed by the Additional Chief Metropolitan Magistrate on 25.04.2013 thereby committing the case to the Sessions Court and further directing that the appellant be taken into judicial custody, cancelling the bail bond. It is in these circumstances the appellant moved an application for grant of anticipatory bail to the said Sessions Court which was granted on 18.05.2013. As already noted above, the order granting bail to the appellant/accused has been cancelled by the High Court.

Mr. Dushyant Dave and Mr. Harin Raval, learned senior counsel appearing for the appellant took us through the material on record on the basis of which it was sought to be argued that there was acquaintance between the appellant and the prosecutrix and the circumstances indicate that the physical relationship, if any, was consensual. It was also submitted that in her statement recorded before the IO on 31.05.2001, there was no allegation of rape; even when the charge was framed under Section 506(2) IPC the prosecutrix did not object to the framing of the said charge simplicitor or insist upon addition of charge under Section 376 of IPC as well; after a gap of more than 9 years from the framing of charge, application was moved for this purpose; in the fresh chargesheet filed by the IO, the IO clearly observed that no other circumstantial evidence could be collected regarding the rape as alleged by the complainant except her statement. It was also submitted that in the complaint made to Jyoti Sangh, NGO, at the end of the complaint which was given by the prosecutrix, there was a noting that no action be taken on the said complaint as the parties were trying to arrive at amicable settlement.

The noting reads as under:

“This case file be kept pending and whenever we want,
only then, you do contest this case again and it is the wish of both of them,
this case is kept pending.

Before me              Sd/- Manisha K. Mehta
Vandana Patva               29.03.2001
29.03.2001.”

It was also pointed out that between 2001 and 2010, the prosecutrix did not appear to give her statement. However, the statement of one Vandana Patva, counsel in the said NGO was recorded. Mr. Dave referred to the cross-examination of the said witness wherein this witness had admitted that in the statement dated 31.05.2001 recorded by the Police, no fact regarding rape was stated. It was also not mentioned as to at which place and at what time, incident of rape had taken place. The learned senior counsel, thus, submitted that in these circumstances the learned Additional Session Judge rightly granted anticipatory bail. The reasons adopted by the High Court in cancelling the bail were commented upon by the learned counsel as not based on record, particularly, the observations of the High Court that the prosecutrix had to run a marathon for getting her complaint registered as a FIR and more particularly for addition of charge under Section 376 of IPC. They further submitted that the High Court wrongly recorded that the Sessions Court had failed to assign proper reasons for grant of anticipatory bail. It was pointed out that the move on the part of the appellant in filing criminal cases against the husband of the prosecutrix, in which the prosecutrix husband was acquitted, is treated by the High Court as tampering with the evidence by disturbing the witnesses and on that basis, it is observed by the High Court that the appellant was not entitled to the benefit of anticipatory bail. Submission in this behalf was that even if the complaint or cases lodged by the appellant against the husband of the prosecutrix are presumed to be false, they had nothing to do with the instant case and, therefore, such acts on the part of the appellant could never be treated as tampering with the evidence.

The prosecutrix appeared in person and argued her case. She extensively took us through the counter affidavit filed by her in opposition to the present proceedings on the basis of which she hammered the following aspects:

(a) The prosecutrix was harrased by the appellant. First act of sexual intercourse was against her wishes and was clearly a rape. After committing this rape, the appellant threatened her and started blackmailing her. On that basis, he took undue advantage of the hapless condition of the prosecutrix in which she was placed and committed subsequent acts of intercourse against her wishes which were nothing but commission of offences under Section 376 of IPC.

(b) Various letters were written by the appellant not only to the prosecutrix but to her other family members as well, which showed his continued harassment to the prosecutrix and her family members.

(c) The appellant was even having an evil eye on the prosecutrix’s daughter who was of growing age and wanted to blackmail the prosecutrix in this behalf as well.

(d) In order to harass the prosecutrix, the appellant even foisted false cases on the husband of the prosecutrix in order to pressurize the prosecutrix to withdraw the case in question.

(e) She also submitted that not only in the complaint made to Jyoti Sangh on 19.03.2001, she had levelled allegations of rape, but such allegations were also made in her complaint to the ACP on 29.05.2001. According to her, in fact, the statement which was recorded on 31.05.2001 by the IO was not correctly recorded who intentionally omitted her statement concerning her rape by the appellant, though specifically stated. It is because of this reason that she had to file the application in the trial court for inclusion of charge under Section 376 IPC with the prayer that complaint dated 29.05.2001 before the ACP should be treated as the FIR and not the statement dated 31.05.2001 recorded by the IO.

(f) She also submitted that she had to come up to this Court to have the charge for offence under Section 376 of IPC framed against the appellant.

Ms. Hemantika Wahi, learned counsel appearing for the State, supported the plea of the prosecutrix. Her submission was that once the charge under Section 376 IPC has been added which was a serious charge and the offence being non-bailable, the proper course of action was to direct the appellant to surrender before the trial court and apply for regular bail. Her submission was that having regard to the seriousness of this charge, it was not a case of anticipatory bail.

We have given our thoughtful and serious consideration to the aforesaid submissions on the charges, particularly, keeping in mind that there is a charge of rape against the appellant and the case projected by the prosecutrix is that as a helpless and weak soul, she has been immensely harrassed, physically abused and mentally tortured by the appellant.

In the first place, it is necessary to remind ourselves that in the present proceedings, this Court is concerned not about the feasibility of framing of the charge under Section 376 IPC or merit thereof but to the grant of anticipatory bail to the appellant. Therefore, the arguments of the prosecutrix that such a charge is rightly framed and the submissions on behalf of the appellant attempting to find the loopholes and the weakness in the prosecution case, would not be of much relevance to the issue involved. At this stage, it cannot be said as to whether there was any physical relationship between the appellant and the prosecutrix and, if so, whether it was consensual and, therefore, no charge of rape was made out. The fact remains that a charge of rape has been framed. It would ultimately be for the trial court to arrive at the findings as to whether such a charge stands proved or not, on the basis of evidence that would be produced by the prosecution in support of this charge. With these preliminary remarks, we advert to the core issue, namely, whether in the circumstances of this case, appellant was entitled to anticipatory bail or not and whether the High Court was justified in cancelling the anticipatory bail.

For this purpose, we would first highlight the admitted position which runs as follows:

The allegations of rape go back to the years 1997-1998. No doubt, in the statement dated 19.03.2001 given to NGO Jyoti Sangh by the prosecutrix, she had levelled the allegations of rape. Equally, no doubt, she had repeated these allegations in her complaint to ACP on 29.05.2001 as well. However, for some curious reasons, the allegations of rape did not find mention in her statement recorded by the IO on 31.05.2001 on the basis of which FIR was registered. This possibility cannot be ruled out that the IO did not record the statement correctly and intentionally omitted to mention about the allegations of rape. Whether this, in fact, happened would be tested during trial. However, the fact remains that when the FIR was registered on the basis of statement recorded on 31.05.2001 and the chargesheet was filed making out a prima facie case only under Section 506(2) of IPC, the prosecutrix did not say anything at that time. There was no protest even when charge was framed by the concerned Magistrate only under Section 506(2) IPC. The objection in this regard was raised for the first time in the year 2008 i.e. almost 7 years after the framing of the charge and application was filed in the year 2010 for including the charge under Section 376 IPC as well on the ground that her complaint to the ACP given on 29.05.2001 be treated as FIR. The prosecutrix may have valid reasons for this delay. However, it is not for us to go into the same at this stage inasmuch as that is again a matter of trial and it would be for the Sessions Court to ultimately adjudge as to whether such delay was suitably explained and/or has any bearing on the merits of the charge. It is reiterated at the cost of repetition that we have to simply decide the question of feasibility of grant of anticipatory bail.

In a matter like this where allegations of rape pertain to the period which is almost 17 years ago and when no charge was framed under Section 376 IPC in the year 2001, and even the prosecutrix did not take any steps for almost 9 years and the charge under Section 376 IPC is added only in the year 2014, we see no reason why the appellant should not be given the benefit of anticipatory bail. Merely because the charge under Section 376 IPC, which is a serious charge, is now added, the benefit of anticipatory bail cannot be denied when such a charge is added after a long period of time and inaction of the prosecutrix is also a contributory factor. The High Court has remarked that the complainant had to run a marathon for getting her complaint registered as an FIR and more particularly for addition of charge under Section 376 IPC. In view of what we have mentioned above, these observations are not correct. Further, the High Court has also wrongly mentioned that the Sessions Court has not assigned proper reasons for grant of anticipatory bail. In fact, the reasons which have persuaded us and recorded above, are precisely the reasons given by the Sessions Court itself while granting anticipatory bail to the appellant. The High Court has also wrongly observed that it is the appellant who was able to drag the matter for a decade before the complaint was registered under proper Sections. The record of the case does not support this observation of the High Court. As far as the discussion in the impugned order commenting upon the conduct of the appellant in filing false complaints and cases against the husband of the prosecutrix is concerned, we find that the High Court has made contradictory remarks on this aspect. At one place, such a move on the part of the appellant is condemned as amounting to disturbing the witness and is treated as tampering with evidence. However, at another place, the High Court itself remarked that the complainant or the prosecutrix cannot get the anticipatory bail cancelled on this basis and the ground of misusing the order of bail after its grant is not made out. As per the High Court, the order of grant of bail by the Session Court itself was improper and that is the basis for cancelling the order passed by the Session Court.

Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. A judgment which needs to be pointed out is a Constitution Bench Judgment of this Court in the case of Gurbaksh Singh Sibbia and Others v. State of Punjab[1]. The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre- arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the ‘touch’ or confinement contemplated by Section 46 of the Code. The essence of this provision is brought out in the following manner: “26. We find a great deal of substance in Mr Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.” Though the Court observed that the principles which govern the grant of ordinary bail may not furnish an exact parallel to the right to anticipatory bail, still such principles have to be kept in mind, namely, the object of bail which is to secure the attendance of the accused at the trial, and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. The Court has also to consider whether there is any possibility of the accused tampering with evidence or influencing witnesses etc. Once these tests are satisfied, bail should be granted to an undertrial which is also important as viewed from another angle, namely, an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. Thus, grant or non-grant of bail depends upon a variety of circumstances and the cumulative effect thereof enters into judicial verdict. The Court stresses that any single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. After clarifying this position, the Court discussed the inferences of anticipatory bail in the following manner:

“31. In regard to anticipatory bail, if the proposed accusation
appears to stem not from motives of furthering the ends of justice
but from some ulterior motive, the object being to injure and
humiliate the applicant by having him arrested, a direction for the
release of the applicant on bail in the event of his arrest would
generally be made. On the other hand, if it appears likely,
considering the antecedents of the applicant, that taking advantage
of the order of anticipatory bail he will flee from justice, such an
order would not be made. But the converse of these propositions is
not necessarily true. That is to say, it cannot be laid down as an
inexorable rule that anticipatory bail cannot be granted unless the
proposed accusation appears to be actuated by mala fides; and,
equally, that anticipatory bail must be granted if there is no fear
that the applicant will abscond. There are several other
considerations, too numerous to enumerate, the combined effect of
which must weigh with the court while granting or rejecting
anticipatory bail. The nature and seriousness of the proposed
charges, the context of the events likely to lead to the making of
the charges, a reasonable possibility of the applicant’s presence not
being secured at the trial, a reasonable apprehension that witnesses
will be tampered with and “the larger interests of the public or the
State” are some of the considerations which the court has to keep in
mind while deciding an application for anticipatory bail. The
relevance of these considerations was pointed out in The State v.
Captain Jagjit Singh, AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1
Cri LJ 216, which, though, was a case under the old Section 498 which
corresponds to the present Section 439 of the Code. It is of
paramount consideration to remember that the freedom of the
individual is as necessary for the survival of the society as it is
for the egoistic purposes of the individual. A person seeking
anticipatory bail is still a free man entitled to the presumption of
innocence. He is willing to submit to restraints on his freedom, by
the acceptance of conditions which the court may think fit to impose,
in consideration of the assurance that if arrested, he shall be
enlarged on bail.”

It is pertinent to note that while interpreting the expression “may, if it thinks fit” occurring in Section 438(1) of the Code, the Court pointed out that it gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a “special case”. The Court also remarked that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use.

Another case to which we would like to refer is the judgment of a Division Bench of this Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Others[2]. This case lays down an exhaustive commentary of Section 438 of the Code covering, in an erudite fashion, almost all the aspects and in the process relies upon the aforesaid Constitution Bench judgment in Gurbaksh Singh’s case. In the very first para, the Court highlighted the conflicting interests which are to be balanced while taking a decision as to whether bail is to be granted or not, as is clear from the following observations:

“1. Leave granted. This appeal involves issues of great public
importance pertaining to the importance of individual’s personal
liberty and the society’s interest. Society has a vital interest in
grant or refusal of bail because every criminal offence is the
offence against the State. The order granting or refusing bail must
reflect perfect balance between the conflicting interests, namely,
sanctity of individual liberty and the interest of the society. The
law of bails dovetails two conflicting interests, namely, on the one
hand, the requirements of shielding society from the hazards of those
committing crimes and potentiality of repeating the same crime while
on bail and on the other hand, absolute adherence to the fundamental
principle of criminal jurisprudence regarding presumption of
innocence of an accused until he is found guilty and the sanctity of
individual liberty.”

The principles which can be culled out, for the purposes of the instant case, can be stated as under:

(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.

(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.

(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.

(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations 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 anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.

(vi) 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.

(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.

(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.

(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.

(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of
the accused must be properly comprehended before arrest is made;

(b) 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;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused’s likelihood to repeat similar or
other offences;

(e) Where the accusations have been made only with the object of
injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of
large magnitude affecting a very large number of people;

(g) 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 the court should consider with even greater care and
caution, because overimplication in the cases is a matter of common
knowledge and concern;

(h) 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 free, fair and full investigation, and there
should be prevention of harassment, humiliation and unjustified
detention of the accused;

(i) The Court should consider reasonable apprehension of tampering
of the witness or apprehension of threat to the complainant;

(j) 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 in entitled to an order of bail.

Having regard to the facts of this case which have already been highlighted above, we feel that no purpose would be served in compelling the appellant to go behind bars, as an undertrial, by refusing the anticipatory bail in respect of alleged incident which is 17 years old and for which the charge is framed only in the year 2014. The investigation is complete and there is no allegation that the appellant may flee the course of justice. The FIR was registered and the trial commenced in the year 2001; albeit with the charge framed under Section 506(2) IPC, and during all these periods, the appellant has participated in the proceedings. There is no allegation that during this period he had tried to influence the witnesses. In the aforesaid circumstances, even when there is a serious charge levelled against the appellant, that by itself should not be the reason to deny anticipatory bail when the matter is examined keeping in view other factors enumerated above.

The prosecutrix has moved an application in these proceedings for perusing new evidence on the basis of which she claims that the appellant has committed breach of conditions of anticipatory bail and regular bail. It is not necessary for us to go into the allegations made in this application. She would be at liberty to make such an application before the trial court for cancellation of bail. We may clarify that we have not gone through the merits of this application, and as and when such an application is made, the trial court would be free to examine the same and pass the order as the trial court deems fit in accordance with law.

Before we part, in order to balance the equities, we are of the view that the trial in this case may be expeditiously conducted and the trial court should endeavour to complete the same within one year.

As a result, we set aside the impugned judgment and restore the order dated 18.05.2013 of the learned Additional Sessions Judge granting anticipatory bail to the appellant on the conditions mentioned in the said order. Appeals are allowed in the aforesaid terms.

*******************************J. (A.K. SIKRI)

*******************************J. (ROHINTON FALI NARIMAN)

NEW DELHI; SEPTEMBER 01, 2015.

*********************************

[1] (1980) 2 SCC 565 [2] (2011) 1 SCC 694