Adducing new documents evidence u/s 391 crpc-Bhavlal Shankar Mahajan vs State Of Maharashtra on 6 September, 1996 – also u/s 313 crpc the accusd is to examined again

Equivalent citations: 1997 CriLJ 3060, 1997 (2) MhLj 709

Bench: N Chapalgaonkar, V Barde

Bhavlal Shankar Mahajan vs State Of Maharashtra on 6/9/1996

JUDGMENT

1. The appellant is convicted for offence punishable u/S. 302 of Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs. 1,000/- in default of payment of fine, rigorous imprisonment for one year. Being aggrieved by this conviction and sentence, this appeal is filed.

2. When the appeal first came up for hearing, it was noticed that the doctor who had performed post-mortem examination was not examined as a prosecution witness in the trial Court. However, the post-mortem examination report was admitted by the accused u/S. 294 of the Code of Criminal Procedure. Therefore, it was admitted in evidence and was placed at Exhibit 9.

3. The learned Additional Public Prosecutor filed Criminal Application No. 1153/1996 for adducing additional evidence as per the provisions of Section 391 of the Code of Criminal Procedure. The said application was allowed as per the order passed on 3-7-1996.

4. The record and proceedings were transmitted to the trial Court for recording the additional evidence of the medical Officer who had performed post-mortem examination. The learned Additional Sessions Judge has recorded the deposition of the doctor and matter has come up again for hearing.

5. The accused was examined u/S. 313 of the Code of Criminal Procedure in the trial Court before the matter was remanded for recording the additional evidence. However, no specific question was asked to the accused in his examination u/S. 313 of Cr.P.C. regarding the statements made in the post-mortem examination report. After recording evidence of the medical Officer, the accused is not asked any specific questions regarding the medical evidence as per the provisions of section 313 of Cr.P.C. No doubt there is no specific provision under the Criminal Procedure Code that accused is to be examined u/S. 313 after recording the additional evidence as per the provisions of Section 391 of Cr.P.C. There may be certain cases where further examination of the accused u/S. 313 may not be necessary after recording evidence u/S. 391 of Cr.P.C. But at the same time, there may be cases or circumstances in a particular case which require that fair opportunity must be given to the accused to explain the circumstances appearing against him in the evidence recorded u/S. 391 of Cr.P.C. We are of the opinion that the present case is one of such cases. The accused ought to be given an opportunity to explain the circumstances appearing against him in the medical evidence by examining the accused u/S. 313 of Cr.P.C.

6. In this particular matter, we would also like to point out that the examination of the accused u/S. 313 Cr.P.C. carried out by the learned Additional Sessions Judge is not at all satisfactory. The provisions u/S. 313 of Cr.P.C. are such that the accused is given a chance to explain each and every circumstances appearing against him. So it becomes necessary for the Court to put specifically each and every circumstance appearing against the accused and to ask his explanation. Asking vague, complex or compound questions will not be proper examination of the accused u/S. 313 of Cr.P.C. Here it is noted that the learned Additional Sessions Judge has put 2 or 3 circumstances in the one question and the accused is called upon to give his explanation. Obviously the accused was not given proper opportunity. The question No. 5 is an example.

7. It is also noticed that instead of putting the specific circumstance appearing against the accused in the evidence of particular witnesses, a question is asked to the accused that prosecution witnesses Nos. 3 and 4 have stated that you have committed the murder of the deceased Janabai by giving an axe blow on her forehead and what he wants to say about it. It was necessary to put the specific statements made by these witnesses to the accused separately and to give him opportunity to explain those circumstances.

8. It will be thus seen that the examinations of accused u/S. 313 of Cr.P.C. carried out during the course of trial was not proper and sufficient. The learned Additional Sessions Judge has not properly followed the procedural law in this respect.

9. The question then arises as to whether the appellate Court can direct the re-trial of the accused from the stage of recording the statement of the accused u/S. 313 of Cr.P.C.

10. The learned Advocate for the accused has argued that by not putting proper questions to the accused u/S. 313 of Cr.P.C. and by not giving him opportunity to explain the circumstances u/S. 313 Cr. P.C., great prejudice is caused to the accused and, therefore, trial vitiates and the accused be acquitted.

11. However, for the mistake committed by the trial Court in following the procedural law, the appellate Court should not allow failure of justice. The Court has to see that there is a fair trial not only with reference to the accused, but also with reference to the prosecution and more important with reference to the society and the victim. The mistake if curable has to be cured.

12. While considering the powers of the appellate Court u/Ss. 423 and 428 of Old Criminal Procedure Code, the apex Court has observed in the matter between Rajeswar Prasad v. State of West Bengal reported in AIR 1965 Supreme Court 1887 : 1965 (2) Cri LJ 817 at page 821, of Cri LJ :

"The legislature has not chosen to indicate the limits of the power and this Court must not be understood to have laid them down. The cases may arise where either of the two courses may appear equally appropriate. Since a wide discretion is conferred on the appellate Courts, the limits of that Courts' jurisdiction must obviously be dictated by the exigency of the situation and fair-play and good sense appear to be the only safe guides."

We, therefore, think that a re-trial from the stage of recording of statements of the accused u/S. 313 of Cr.P.C. can be directed in the present case where the circumstances are very peculiar.

13. In this respect, we agree with the observations made in the Division Bench ruling of the Kerala High Court in the matter between Lakeshmanan Sunderam v. State of Kerala, 1990 Criminal Law Journal, 1800.It is observed at page 1810.

"When additional evidence by way of examination of witnesses for prosecution is ordered u/S. 391 of the Code that may necessitate further questioning by the Court of the accused u/S. 313 of the Code and thereupon the accused may have to get an opportunity to adduce evidence. It may not always be practicable or convenient for the appellate Court to go through this entire exercise. In appropriate cases, it must be open to the appellate Court to order retrial from a particular stage."

14. Considering the circumstances in this case, we think that the re- trial should be ordered from the stage of recording statements of the accused u/S. 313 of Cr.P.C. In a way this opportunity is being given to the accused to explain the circumstances appearing against him and no prejudice will be caused to him if such retrial is directed. The medical evidence which is brought on record it is taken into consideration without giving an opportunity to the accused to explain the same, that will cause prejudice to the accused. The accused will also get an opportunity to lead any defence evidence if he so desires.

15. Hence, the judgment and order passed by the learned Additional Sessions Judge, Jalgaon, in Sessions Case No. 246/92 on 18-2-1993 is set aside. The matter is remanded to the trial Court for retrial from the stage of recording the statements of the accused u/S. 313 of Cr. P.C. The Additional Sessions Judge to record the statements of the accused u/S. 313 of Cr.P.C. by taking into consideration the observations made above. The accused be asked his explanation about all the circumstances appearing against him in evidence including the evidence recorded under Section 391 of Cr.P.C. The learned Additional Sessions Judge then may examine any defence witness if the accused so desires to examine. The learned Additional Sessions Judge then after hearing the arguments of prosecution and the accused should deliver the judgment. We make it clear that we have not expressed any opinion about the evidence of prosecution brought on record and about the findings and reasoning recorded by the Additional Sessions Judge in the judgment. The Additional Sessions Judge while deciding the matter is at liberty to reach at his own independent findings. The learned Additional Sessions Judge is directed to dispose of the case within a period of one month from the date of receipt of record and proceedings. The appeal is allowed accordingly. We quantify fees of Shri R. D. Mane, amicus curiae, at Rs. 500/-

16. Appeal allowed.

http://www.indiankanoon.org/doc/619829/

(Actually your petition should have been under Sec.391(1) Cr.P.C. before filing a writ (Crl.)
The Appellate court has the powers to take aditional evidence similar to the provisions of Order 41 rule 27 of cpc. if necessary to avoid any miscarriage of justice. Check following Case Law *Bhavlal Shankar Mahajan vs. state of Mah. 1997 Cr.l.j. 3060.)

How to get Anticipatory Bail ?

How to get Anticipatory Bail ?

I wish to share my experience that one should not be overconfident in courts as anything can happen there. Therefore in criminal matters, on the day of order, all accused must be ready with applications for (1) Bail - Cash Bail and for that keep sufficient money say about Rs.15K per person, and (2) suspension of order for appeal to higher court.
If AB is rejected on authenticity of voice recordings - exhaust your chances before going to below points -file a revision petition challenging the rejection of the audio recording. Then try
1. State's Forensic Lab
2. A private organisation called Truth Labs, Hyderabad. Not sure, if their findings are admissible in the court. their website linked here : http://truthlabs. org/services. php
Bail commonly means release on one’s own bond, with or without sureties. The purpose of bail is not to set the accused free, but to release him from custody and to entrust him to the custody of his sureties who must produce him at his trial at a specified time and place. Every accused person is presumed under law to be innocent until proved guilty. An opportunity is given to him to prove his innocence by granting bail.
LAW IN DETAIL………
The offences committed by an accused fall under two categories:
1. BAILABLE OFFENCES :
Bailable offences are offences mentioned in the I schedule of the Indian Penal code as bailable offences. When any person accused for a bailable offence is arrested or detained without warrant by police officer or is brought before a Court, he must be released on bail, if a request for bail is made. In case of a bailable offence, bail is a matter of right . If such officer or Court thinks it fit, such person maybe released on a personal bond without sureties. If for any reason, the police doesn’t give bail, the arrested person must be produced before a Magistrate within 24 hours of arrest.
2.NON-BAILABLE OFFENCES
In case a person is accused of a non-bailable offence it is a matter of discretion of the court to grant or refuse bail and and application has to be made in court to grant bail. A person will not be released if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (or) Such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. However a person under the age of sixteen years or a woman or a sick or infirm person may be released on bail. If, at any time after the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court feels that the accused is not guilty of any such offence, it shall release the accused on bail.
3. Anticipatory Bail :
If a person believes that he may be arrested for a non-bailable offence, he may apply to the High Court or Court of session for anticipatory bail i.e, in the event of arrest, he shall be released on bail. While granting anticipatory bail, the court may impose certain conditions in the interest of justice and to ensure that no obstructions are created on the path to justice. The accused may have to take the permission of the court before leaving the country. The anticipatory bail is valid during the whole proceedings of the case unless cancelled earlier.
PROCESS FOR SOLUTION…………Complaint Under which Section ?
Section 436 - 450
Whom to complain / where to complaint? ……
• The police officer himself grants bail in bailable cases
• The Magistrate grants bail in non-bailable cases
• The Court of session & High Court have special & wide powers to grant bail.
How to file the Case ? ……………………
• For non-bailable offences, apply to the concerned magistrate setting out the grounds for the grant of bail.
• In case the court is convinced that bail should be granted, it passes the order after hearing the arguments.
• At that stage fill in the bail bond duly signed by the surety and to be filed through his advocate. The surety takes the responsibility for producing the accused person in the court.
• The amount of every bond executed shall be fixed with due regard to the circumstances of the case.
• A High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application filed by the complainant or the prosecution.
• In case of a bailable offence, only the bail bonds must be filed. No application is required to be made.
What Next ? ………………………
• Where a person is released on bail he should make himself available to the police whenever they need him
• If he is released on a conditional bail, he must fulfill all the conditions
• If he refuses to comply with the conditions, the court will refuse any further applications for bail.
• A person released on bail by police must seek fresh bail from court.
ALTERNATE REMEDIES…………………………………
There are no Alternative remedies
Format :
What should be written in the application?
In the application always mention the following things:
• Name :
• Offence for which he was arrested :
• Date of arrest :
• Address, years of residence and description of family :
• To whom the house belongs
• If a tenant, details of landlord:
• Place of work and other details:
• Mention whether arrested earlier or not, if not involved in any crime then mention it :
• Write " I promise that I will not abscond/mislead the witnesses/manipulate or destroy the evidences/whenever called I will appear before the court of Police Station."
• Request to be released on bail :
• Give Details like I Stay_____ ( place ) or I belong to ________ community. People from_____ Community know me very well therefore there is no apprehension of my absconding.
• This application should be placed before the magistrate on first hearing.
• It could be given either in writing or in oral.
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One thing to remember is after getting bail according to The Andhra Pradesh Criminal Rules of Practice and Circular Orders, 1990 says that - Rule 30: When an accused is released on bail during investigation, he shall be bound over to appear in Court after the chargesheet is filed and summons served on him. It is not necessary to bind him to appear on any earlier date or dates.

This rule is framed in almost every state which the High Court of that respective state enforces on ALL magistrates or criminal courts under it(their jurisdiction). Basically it dictates the code and procedure/guidance to be followed in the criminal courts. It derives its power from the Cr.P.C 477 and is notified. Hence, mandatory.
I request the moderator to put this rule in the front page. Unnecessarily many people are attending court and many Magistrates are issuing Non-Bailable Warrants i.e exercising their powers ultra vires the rules. They are bound by it. This must be brought to the notice of the magistrate and if he does issue , then HC will give you respite even after chargesheet - dispense with appearance petition. These rules are mandatory and binding not directory on them but due to ignorance and prodding by opposite side lawyers to make arrest for all silly reasons. The fear of arrest is pervasive and must be resisted by all.
There is a direction/order given by Justice Raja Elango of AP High COurt in one of the petitions warning the Magistrate in Karimnagar to not issue NBW's until chargesheet is filed in all criminal cases. It was commented that this is atrocious behavior of Magistrates and should be curtailed. It cannot be seen on net though. Don't know why. Transparency is lacking and one of the ways to deal is to fight for computerization of the courts. If we write letters to Chief Justices - maybe in 10 years it might be all computerized.
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Bail before jail to protect a persons reputation says Supreme Court.

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.

Here is one important point to be kept in mind with regard to anticipatory bail: The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

SAVITRI AGARWAL Vs STATE OF MAHARASHTRA – 200

Here is the coverage from The Hindu http://www.hindu.com/2009/07/24/stories/2009072461182000.htmThe Supreme Court of India explains the meaning of Anticipatory Bail and lays the conditions for granting it. Here are the 9 guidelines as laid down by a constitution bench, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:
i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.
ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds.
Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.
iii) The observations made in Balchand Jain’s case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life.
Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation.
One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.
v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.
vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.
ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.
Here is the judgment: SAVITRI AGARWAL Vs STATE OF MAHARASHTRA – 2009

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The main conditions for AB i sthat you have to prove that you have
1> Roots in society and that you will comply with the investigation. Since it is a familial matter and that you are separated - there are chances of the wife filing a case on you.
2> Show the court that you will not abscond and are willing to put up a surety amounting to Rs 5000 or something like that.
3> Show the court that you have been threatened of false dowry harassment case on you and your entire family. AB will cost only Rs 12-20 as court fee. Your lawyer may charge you and is one of the main sources of income for many lawyers and advocates.
4> Mention in court if all else fails - that you be given atleast 7 days notice to comply with investigation and apply for regular bail at the minimum.
Read the recommendations of the law commission which were made in 2007.

File CRLP in High Court for Anticipatory Bail like as under:
Example: Petition under Section 438 of Crl. P.C. praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to direct the Station House Officer, XXX to release the petitioner on bail in the event of execution of Non Bailable Warrants issued against the petitioner in P.R.C.No. XX of 2008 on the file of Judicial Magistrate of First Class, Special Mobile Court, XXXX. See below information on using your AB to maximum use.
If the accused of 498a or any one is arrested as per record, because a person is in arrest even if he is released on Anticipatory Bail and his Life and Liberty is restricted and can has the Right to Information within 48 hrs u/s 7(1) of RTI Act.
You will also get replies within 48 hrs of your RTI application under life and liberty section. So this is a great new for all people arrested and this will really let the police think before unnecessory arresting innocent people as this may lead flooding with asking information within 48 hrs.
Regular Bail under U/s.437 and 439 Cr.P.C
See the link:what-is-anticipatory-bail/
Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
Here is an explanation of Anticipatory bail given by the Supreme Court (Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 SUPREME COURT 1632). A person can apply for AB even after the FIR is filed, but not if the person has been arrested. Read the excerpts to get an understanding of AB:

• 35. Section 438 (1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe’ that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.
• Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet file.
• Fourthly, anticipatory bail can be granted even after in FIR is filed, so long as the applicant has not been arrested.
• After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offenses for which he is arrested.

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

1. The nature and gravity or seriousness of accusation as apprehended by the applicant;
2. The antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;
3. The likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and
4. The possibility of the appellant, if granted anticipatory bail, fleeing from justice

1. Anticipatory Bail Order For An NRI:

• Shashikanth Patil (NRI) AB Order 1
• Shashikanth Patil (NRI) AB Order 2

When Can A Person Apply For AB ?: When any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him. He has the right to move the Court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

Conditions That May Be Imposed By The Court: The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:

· A condition that the person shall make himself available for interrogation by the police officer as and when required;

· 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;

· A condition that the person shall not leave India without the previous permission of the court.

Arrest: If such person is thereafter arrested, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail and the magistrate taking cognizance of such offence decides that warrant should be issued against that person, he shall issue a bailable warrant in conformity with the direction of the court granting anticipatory bail.

Anticipatory Bail Not A Blanket Order: The applicant must show by disclosing special facts and events that he has reason to believe, that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences.

Cancellation: An accused is free on bail as long as the same is not canceled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.

Anticipatory Bail Not Available In Uttar Pradesh & Uttaranchal

• Click here for the steps to get AB
• SC 498A AB Judgment Explaining Some Misconceptions - 2003
• Advice On Getting Regular Bail

Two-month-old Zoya Khan is perhaps the youngest person to get bail. Her entire family was accused by her step mother of harassment for dowry. Says lawyer Anil Bole: "Her stepmother Shakila lodged a complaint of dowry harassment against her father. In the complaint letter she is also mentioned as an accused."
Zoya's ordeal started last Friday when her stepmother filed the complaint. The Khans were summoned to the police station. Zoya spend over ten hours there with her biological mother before anticipatory bail was granted to them.
Says Zoya's mother Reshma Khan: "My daughter is two months old. I have to breast feed her in every ten minutes. If I am not around who ill take care of her." The police says the complaint letter mentions everybody, including Zoya. In their FIR, obviously, a minor Zoya is not an accused.
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Sample order:
Dated this the 16th day of July 2007
O R D E R
Application for anticipatory bail. The petitioners are the husband and step-mother of the husband of the de facto complainant. The marriage between the spouses took place on 13/2/2006. The petitioners face allegations under Section 498A I.P.C. A crime was registered inter alia under Section 498A read with 34 I.P.C on the basis of a private complaint filed before the learned Magistrate and referred by the learned Magistrate under Section 156(3) Cr.P.C. Investigation is in progress. The petitioners apprehend imminent arrest.
2. The learned counsel for the petitioner submits, the learned Public Prosecutor does not oppose the said prayer and I am satisfied that the petitioners can be granted anticipatory bail. In coming to this conclusion, the reality that if the petitioners were arrested and detained in custody, that would mar all possibilities of harmony in the marriage, does weigh with me considerably. No specific allegations of overt physical violence is made also.
3. In the result, this petition is allowed. Following directions are issued under Section 438 Cr.P.C in favour of the petitioner.
i) Petitioners shall surrender before the learned Magistrate having jurisdiction at 11 a.m on 23/7/2007. B.A.No.4312/07 2 ii) They shall be released on regular bail on condition that they execute bonds for Rs.25,000/- (Rupees twenty five thousand only) each with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. iii) The petitioners shall make themselves available for interrogation before the investigating officer between 10 a.m and 3 p.m on 24/07/2007 and 25/07/2007 and thereafter on all Mondays and Fridays between 10 a.m and 12 noon for a period of two months and subsequently as and when directed by the investigating officer in writing to do so. (iv) If the petitioners do not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to
arrest the petitioners and deal with them in accordance with law, as if these directions were not issued at all.
(v) If they were arrested prior to 23/7/2007, they shall be released from custody on their executing a bond for Rs.25,000/- (Rupees twenty five thousand only) without any sureties, undertaking to appear before the learned Magistrate on 23/7/2007.

http://498afaq.blogspot.com/2009/04/how-to-get-anticipatory-bail.html

Bail procedure follwed

1. Any bail application must be presented before the Superintendent, District Court, District. He receives it, puts his initials and the date stamp of the District Court on every page and transmits it to the Inward Section.

2. The Inward Section Clerk enters the name/s of the petitioner/s, name of the Advocate, Crime Number and name of the Police Station in the 12-Register (Inward Register) and sends it to the Translator, Criminal Section of the District Court.

3. Then the Translator of the District Court or his Assistant checks the application, writes a brief note on the bail application and the Translator places the same before the District Judge, District for orders.

4. After obtaining orders from the District Judge, the Translator of the District Court allots Cr.M.P.Nos. to the bail applications and enters them in the Cr.M.P. Register (6 A Register). He also enters the orders passed by the District Judge on each application in the Diary Register (11-Register). If they are made over to any of the Additional District Courts, the said order would

also be mentioned in both the Registers.

5. If the bail application is ordered to be made over to any of the Additional District Courts, the Translator sends it to the concerned Court along with the Cr.M.P. Register. The Criminal Section Clerk in the I-Additional District Court and the Translator in the II-Additional District Court receive bail applications after putting their initials in the Cr.M.P.Register, in token of having received these application. They place the applications before the concerned Additional District Judges for orders, after making a note on the application "Received from Sessions Court".

6. Then the Additional District Judges order notice to the Additional Public Prosecutors of their Courts. The Criminal Clerk of the I-Addl. District Court and Translator of the II-Addl. District

Court enter the particulars of these applications in their respective Cr.M.P. Registers (6-A Register) as well as the Diaries (11-Register) of their courts.

7. The Steno-Typists of both the Additional District Courts take down the orders, in short hand, as and when the Additional District Judges dictate them and transcribe them on the bail applications. The Typist in the II-Addl. District Court types the fair orders, while in the I-Addl. District Court the Steno-Typist does it.

8. Whenever any bail application is made over to any Additional District Court in any Crime Number, all subsequent bail applications filed in the same Crime number either for the same accused or for the co-accused will also be made over to that particular Additional district Court only.

Right To Bail In India

Right To Bail In India

 

Introduction

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested. The object of arrest and detention of the accessed person is primarily to secure his appearance at the trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could be reasonable ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the issue of summons or those relating to the arrest of the accessed person under a warrant or without a warrant or those relating to the release of the accessed at his trial but without unreasonable and unjustifiably interfering with his liberty. Thus this article is related with the provisions related with the release of a person on a bail.

In words of Krishna Iyer J. .. the subject of bail:-

" ..... belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process."

Thus release on bail is crucial to the accused as the consequences of pre-trial detention are given. If release on bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt he would be subjected to the psychological and physical deprivation of jail life. The jail accessed loses his job and is prevented from contributing effectively to the preparation of his defense.

Therefore where there are no risks involved in the release of the arrested person it would be cruel and unjust, to deny him bail. The law bails " has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence. The presumption of innocence of an accused till he is found guilty".

In order to sub serve the above said objective, the Legislature in its wisdom has given precise directions for granting or granting bail.

Why Bail?

Before actually determining the place of bail within human rights framework as conferred by the Constitution, it is important to examine the object and meaning of bail, such that an analysis of these fundamental objects and change therein may reveal a change. The object detention of an accused person is primarily to secure her/his appearance at the time of trial and is available to receive sentence, in case found guilty. If his/her presence at the trial could be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to deprive the accused of his liberty during pendency of criminal proceedings.

Thus it is important to note the relevant provisions enshrined in the Universal Declaration of Human Rights:-

Article 9- No one shall be subjected to arbitrary arrest, detention or exile.

Article 10- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11(1)- Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention

MEANING OF BAIL

Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority.

"Bail has been defined in the law lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation."

According to Black's Law Dictionary, what is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.".

MEANING OF BAIL IN INDIA

According to Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offense and non-bailable offense have been defined in section 2(a) Cr.P.C. as follows: " Bailable offense means an offense which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense". That schedule refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories. The analysis of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration. However, it can be generally stated that all serious offenses, i.e. offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses. Further, Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary cap on the bond.

Indian Courts however ,have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is usually refused when the accused is charged with homicide.

It must be further noted that a person accused of a bailable offenses is arrested or detained without warrant he has a right to be released on bail. But if the offense is non-bailable that does not mean that the person accused of such offense shall not be released on bail: but here in such case bail is not a matter of right, but only a privilege to be granted at the discretion of the court.
Provisions under the Code of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973, makes provisions for release of accused persons on bail. Section 436 of the Code provides for release on bail in cases of bailable offenses. Section 436 provides that when person not accused of a non-bailable offense is arrested or detained he can be detained as right to claim to be released on bail. The section covers all cases of person s accused of bailable of fences cases of persons though not accused of any offense but against whom security proceedings have been initiated under Chapter VIII of the Code and other cases of arrest and detention which are not in respect of any bailable offense.

This section entitles a person other than the accused of a non-bailable offense to be released on bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such a person without a warrant to inform him his right to be released on bail.

Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the officer-in-charge of a police station or any court does not have any discretion whatsoever to deny bail in such cases. The word " appear in this sub- clause is wide enough to include voluntary appearance of the person accused of an offense even where no summons or warrant has been issued against him. There is nothing in S. 436 to exclude voluntary appearance or to suggest that the appearance of the accused must be in the obedience of a process issued by the court. The surrender and the physical presence of the accused with the submission to the jurisdiction and order of the court is judicial custody, and the accused may be granted bail and released from such custody.

The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too high amount of bond or bail-bond to be furnish by the person seeking bail. Section 440(1) provides 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. Further S. 440(2) empowers the High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.

Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the condition of his bail bond when released on bail is a bailable case on a previous occasion, shall not as of right to be entitled to bail when brought before the court on any subsequent date even though the offense may be bailable.

In Maneka Gandhi v. Union of India [1978] 2 SCR 621

The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often resulting denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond.

It also stated that there is a need to provide by an amendment of the penal law that if an accused willfully fails to appear incompliance with the promise contained in his personal bond, he shall be liable to penal action.

J. Per Bhagwati & Koshal, JJ. further observed that it is now high time that the State Government realized its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases.

In Moti Ram & Others. v. State of M.P [1978] 4 SCC 47

Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the release, inappropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation.

Criminal courts today, are 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. In this case the court also pointed out the 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. The Court laid down following guidelines, that determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:

1. The length of his residence in the community, 2 His employment status, history and his financial condition, 3. His family ties and relationships, 4 His reputation, character and monetary condition, 5.His prior criminal record including any record or prior release on recognizance or on bail, 6. The identity of responsible members of the community who would vouch for his reliability. The nature of the offense charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond.

Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offense, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or confirmed criminal or the offense is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offense is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it.
Section 436A . Maximum period for which an under trial prisoner can be detained -

The new provision Section 436Awas introduced in order to solve the problems of undertrials' who were languishing in jails as they will now be given an opportunity to be set free instead of endlessly waiting for their trial to take place. This move has been made due to a faulty criminal justice system and provides a makeshift method of providing justice and relief to undertrial prisoners. This seems to suggest that the Legislature and the Government have accepted the existence of the faulty system and their inability to do anything about it. For this purpose section 436 A was inserted.

According to S. 436-A, a person who has undergone detention for a period extending upto half of the maximum period of imprisonment imposed for a particular offense, shall be released on her/his personal bond with or without sureties. The procedure provided is that the Court has to hear the Public Prosecutor and give its decision with reasons in writing. The Court may release the applicant, or if not satisfied may order for the continued detention of the applicant. However, no prisoner can be detained for a period longer than the maximum period of imprisonment provided. The exception to the section is that it is not applicable to offenders who have been sentenced to death.

Moving onto the (de)merits of the provisions itself, S. 436-A gives discretion to the Court to set the prisoner free or to make him/her continue imprisonment. There is no mention of any applications having to be filed under the section. The first part of the section states that any prisoner who has served more than half the term of his/her imprisonment 'shall' be released. However, the proviso puts a restriction on the mandatory provision by giving discretionary powers to the courts. This raises questions regarding the implementation of the provision. There is every chance that a prisoner may be sent back to jail to serve a period longer than the half term of his/her sentence. Till the Judges give their written reasons for the same, one will not know on what grounds a continuation of the term can be ordered as the section does not provide any guidelines. Will the undertrial prisoner continue to serve term till the maximum period of the

Granting of Bail with conditions

Section 437 of the Code provides for release on bail in cases of non-bailable offenses. In such cases, bail is not a matter of right. Court has sufficient discretion to deny or to grant bail. First Schedule to the Code provides the list of bailable and non-bailable offenses. Further cases often arise under S. 437, where though the court regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. To meet this need sub-section (3) of S. 437 provides:

When a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, 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.

It will be noticed that: -

1)The power to impose conditions has been given to the court and not to any police officer 2)The power to impose conditions can only be exercised -

i)Where the offence is punishable with the imprisonment which may extend to seven years or more or

ii)Where the offence is one under Chapter VI (Offences against the State), Chapter XVI (offences against the human body), or Chapter XVII (offences against the property) of I.P.C, or

iii)Where the offence is one of the abetment of or conspiracy to or attempt to commit any such offence as mentioned above in (i) and (ii).

CANCELLATION OF BAIL

According to S. 437(5) any court which has released a person on bail under (1) or sub sec (2) of S. 437 may if considers it necessary so to do, direct that such person be arrested and committed to custody.

The power to cancel bail has been given to the court and not to a police officer. Secondly, the court which granted the bail can alone cancel it. The bail granted by a police officer cannot be cancelled by the court of a magistrate. For cancellation of bail in such a situation, the powers of the High Court or Court of Session under S. 439 will have to invoked. Rejection of bail when bails applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in such case. Cancellation of bail necessary involves the review of a decision already made and can large be permitted only if , by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. However, bail granted illegal or improperly by a wrong arbitrary exercise of judicial discretion can be cancelled even if there is absence of supervening circumstances. If there is no material to prove that the accused abused his freedom court may not cancel the bail.

In Public Prosecutor v. George Williams1951 Mad 1042

The Madras High Court pointed out five cases where a person granted bail may have the bail cancelled and be recommitted to jail:

(a)Where the person on bail, during the period of the bail, commits the very same offence for which is being tried or has been convicted, and thereby proves his utter unfitness to be on bail; (b)If he hampers the investigation as will be the case if he, when on bail; forcibly prevents the search of place under his control for the corpus delicti or other incriminating things; (c)If he tampers with the evidence, as by intimidating the prosecution witness, interfering with scene of the offence in order to remove traces or proofs of crime, etc. (d)If he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and (e)If he commits acts of violence, in revenge, against the police and the prosecution witnessed & those who have booked him or are trying to book him.

RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL LIBERTY

The right to bail is concomitant of the accusatorial system, which favours a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment. The right of police to oppose bail, the absence of legal aid for the poor and the right to speedy reduce to vanishing point the classification of offences into bailable and non-bailable and make the prolonged incarceration of the poor inevitable during the pendency of investigation by the police and trial by a court.

The fact that under trials formed 80 percent of Bihar's prison population, their period of imprisonment ranging from a dew months to ten years; some cases wherein the period of imprisonment of the under trials exceeded the period of imprisonment prescribed for the offences they were charged with- these appalling outrages were brought before the Supreme Court in Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360

Justice Bhagwati found that these unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford a bail. In Mantoo Majumdar v. State of Bihar AIR 1980 SC 846 the Apex Court once again upheld the under trials right to personal liberty and ordered the release of the petitioners on their own bond and without sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of the under trials, remanded by them to prison. The Court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of under trials, and the magistrate failure to monitor the detention of the under trials remanded by them to prison.

The travails of illegal detainees languishing in prisons, who were uniformed, or too poor to avail of, their right bail under section 167 Cr.P.C. was further brought to light in letters written to Justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar (1982) 2 SCC 583. The court recognized the inequitable operation of the law and condemned it- "The rule of law does not exist merely for those who have the means to fight for their rights and very often for perpetuation of status quo... but it exist also for the poor and the downtrodden... and it is solemn duty of the court to protect and uphold the basic human rights of the weaker section of the society. Thus having discussed various hardships of pre-trial detention caused, due to unaffordability of bail and unawareness of their right to bail, to under trials and as such violation of their right to personal liberty and speedy trial under Article 21 as well as the obligation of the court to ensure such right. It becomes imperative to discuss the right to bail and its nexus to the right of free legal aid to ensure the former under the Constitution- in order to sensitize the rule of law of bail to the demands of the majority of poor and to make human rights of the weaker sections a reality.

RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID -:

ARTICLES 21 AND 22 READ WITH ARTICLE 39A

Article 21 of the Constitution is said to enshrine the most important human rights in criminal jurisprudence. The Supreme Court had for almost 27 years after the enactment of the Constitution taken the view that this Article merely embodied a facet of the Dicey on concept of the rule of law that no one can deprived of his life and personal liberty by the executive action unsupported by law. If there was a law which provided some sort of procedure, it was enough to deprive a person of his life and personal liberty.

In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for an accused person. Article 22(1) does provide that no person who is arrested shall be denied the right to consult and to be defended by legal practitioner of his choice, but according to the interpretation placed on this provision by the Supreme Court Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227. in this provision does not carry with it the right to be provided the services of legal practitioners at state cost. Also Article 39-A introduced in 1976 enacts a mandate that the state shall provide free legal service by suitable legislations or schemes or any other way, to ensure that opportunities for justice are not denied to any citizen by reason of economic or other disabilities - this however remains a Directive Principle of State Policy which while laying down an obligation on the State does not lay down an obligation enforceable in Court of law and does not confer a constitutional right on the accused to secure free legal assistance.
However the Supreme Court filled up this constitutional gap through creative judicial interpretation of Article 21 following Maneka Gandhi's case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra a AIR 1978 SC 1548nd Hussainara Khatoon's case that a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would, therefore go through the trial without legal assistance cannot be regarded as reasonable, fair and just. It is essential ingredient of reasonable, fair and just procedure guaranteed under Article 21 that a prisoner who is to seek his liberation through the court process should have legal services made available to him.

The right to free legal assistance is an essential element of any reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21.
Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the language of Article 21 and held that this is....

"a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer."

Conclusion

It is indisputable that an unnecessarily prolonged detention in prison of under trials before being brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. Thus the law of bails must continue to allow for sufficient discretion, in all cases, to prevent a miscarriage of justice and to give way to the humanization of criminal justice system and to sensitize the same to the needs of those who must otherwise be condemned to languish in prisons for no more fault other than their inability to pay for legal counsel to advise them on bail matters or to furnish the bail amount itself.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons today include many who are unable to secure their release before trial because of their inability to produce sufficient financial guarantee for their appearance. Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step-in defence of individual liberty if appropriate provision as made in the statute for non-financial releases.

BY SUDERSHANI RAY

Article Source: http://EzineArticles.com/?expert=Sudershani_Ray

 

By Sudershani Ray

SC on Anticipatory Bail conditions -filing of the first information report is not a condition precedent to the exercise of power under Section 438.- Over-generous infusion of constraints and conditions, which were not found in Section 438, could make the provision constitutionally vulnerable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1178-1179 OF 2009

(Arising out of S.L.P. (Criminal) Nos. 5563-5564 of 2008) SAVITRI AGARWAL & ORS. -- APPELLANT (S) VERSUS

STATE OF MAHARASHTRA & ANR. -- RESPONDENT (S) JUDGMENT

D.K. JAIN, J.:

Leave granted.

2. Challenge in these two appeals is to the judgment and order dated 2nd July, 2008 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Applications No.250 and 2081 of 2008, whereby the said two applications filed by the State and the 2

complainant respectively, have been allowed and the protection granted to the appellants by the Sessions Judge, Amravati vide order dated 18th December, 2007 in terms of Section 438 of the Code of Criminal Procedure, 1973 (for short `the Code') has been withdrawn. The appellants herein are the mother-in-law, father-in-law, husband and the younger brother of the father-in-law of the deceased-Laxmi. They are accused of having committed offences punishable under Sections 498A, 304-B read with Section 34 of the Indian Penal Code, 1860 (for short `the IPC') and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

3.Material facts, leading to the filing of these appeals, are as follows: The deceased-Laxmi got married to appellant No.3 on 26th January, 2006. On 13th October, 2006, they were blessed with a baby boy. On 6th December, 2007 at about 4.30 p.m., appellant No.2 (father-in-law) is stated to have heard the cries of Laxmi and when he rushed to the second floor of the house, he saw her burning. He tried to douse the fire. Laxmi told him that her son was lying in the bathroom. He rushed to the bathroom and found that the child also had burns. Laxmi and her child were removed to the hospital. At 3

about 6.40 p.m., her statement was recorded by the Executive Magistrate wherein she stated that she and her son caught fire when she was pouring kerosene oil in the lamp which accidentally fell down; the oil got spilled over and both of them got burnt. At about 10.55 p.m., the minor child expired. On receiving the intimation, parents of Laxmi reached the hospital at about 11.30 p.m. the same night. On 7th December, 2007, at about 1.40 p.m. another statement of Laxmi was recorded by the Executive Magistrate wherein again she reiterated that she had got burnt accidentally. 4.On 8th December, 2007, father of Laxmi lodged a complaint with Police Station City Kotwali, Amravati against the appellants, inter alia, alleging that after the marriage of his daughter on 26th January, 2006, the appellants were torturing her for not meeting dowry demand of Rs.2 lakhs and earlier on 15th July, 2006, due to torture she had left the matrimonial home, intending to commit suicide but due to intervention of the relatives, she returned back to Amravati. On the said complaint, the police registered an FIR against the appellants for offences under Section 498A read with Section 34, IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

4

5.On 6th December, 2007 the appellants applied for grant of anticipatory bail before the Sessions Judge, Amravati, who, vide order dated 10th December, 2007, initially granted interim protection to them from arrest till the next date of hearing i.e. 17th December, 2007. On 16th December, 2007, Laxmi expired and offence under Section 304-B IPC came to be added against the appellants. On 18th December, 2007, after hearing both sides and upon taking into consideration the said two dying declarations made by the deceased - Laxmi, statements of the complainant and witnesses and after perusing the case diary, the learned Sessions Judge confirmed the anticipatory bail granted to the appellants. 6.Aggrieved, the State of Maharashtra and the complainant filed petitions before the High Court for cancellation of anticipatory bail granted to the appellants. As noted earlier, by the impugned order, the High Court has cancelled the anticipatory bail granted to the appellants, on the ground that the Sessions Judge had failed to apply his mind to certain vital circumstances viz. - absence of mention of lantern and match stick in the panchnama; necessity of lantern and its lighting at 4 p.m. in the afternoon when the house was equipped with an inverter; the daughter-in-law doing such risky work with one 5

year old child, particularly when elders in the family were present in the house and had everything been well in the house, there was no occasion for the parents of the deceased to implicate her in-laws. Inter alia, observing that the evidence, which directly involved the appellants, had been ignored, rendering the order passed by the Sessions Judge perverse, as noted above, the High Court has set aside the said order. The High Court has also noted that the offences complained of, being of serious nature, there was no ground to grant anticipatory bail to the appellants. Being aggrieved, the appellants are before us in these appeals.

7.Mr. Uday U. Lalit, learned senior counsel appearing for the appellants contended that the High Court has failed to appreciate the factual background of the case, particularly the fact that in both the dying declarations recorded by the Executive Magistrate, the deceased had not levelled any allegation against the appellants for demanding any dowry or for torturing her for any other purpose. It was strenuously urged that the second dying declaration recorded on 7th December, 2007 at about 1.40 p.m. was in the presence and perhaps at the instance of the father of the deceased, who admittedly had arrived in the hospital on 6th December, 2007 at 11.30 p.m., yet 6

the deceased did not level any allegation against the appellants. Learned counsel argued that the anticipatory bail having been granted by the Sessions Judge upon consideration of the relevant material placed before him by the prosecution, viz. the dying declarations, the statements recorded by the investigating officer and the case diary, in the absence of any complaint by the Investigating Officer that the appellants were not cooperating in the investigations after the grant of interim protection on 10th December, 2007, or that they had misused the anticipatory bail granted to them, there was no other overwhelming circumstance before the High Court, warranting interference with the judicial discretion exercised by the Sessions Judge and cancellation of bail.

8.Per contra, Mr. Sekhar Naphade, learned senior counsel, appearing on behalf of the State strenuously urged that the circumstances relied upon by the High Court in its order cancelling the anticipatory bail point a needle of suspicion at the appellants and therefore, to elicit the truth custodial interrogation of the appellants would be necessary. Highlighting the fact that the deceased had left her matrimonial home on 15th July, 2006 intending to commit suicide because of torture by the appellants and had returned back to her matrimonial home on 7

being persuaded by the relatives of both sides on the assurance by the appellants that she would not be harassed, the incident in question raises presumption against the appellants in terms of Section 304-B IPC. Learned counsel for the complainant, supporting the orders passed by the High Court, submitted that since order granting anticipatory bail had been passed by the Sessions Judge by ignoring evidence and material on record and the nature of offence, in the light of the decision of this Court in Puran Vs. Rambilas & Anr.1, the High Court was justified in cancelling the bail. 9.Before examining the merits of the rival contentions, we deem it appropriate to re-capitulate the background in which Section 438 was inserted in the Code and the broad parameters to be kept in view while dealing with an application under the said provision because despite plethora of case law on the subject including a decision of the Constitution Bench in Shri Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab2 certain misgivings in regard to the concept and scope of the said provision still seem to prevail.

1

(2001) 6 SCC 338

2

(1980) 2 SCC 565

8

10.Section 438 of the Code confers on the High Court and the Court of Session, the power to grant `anticipatory bail' if the applicant has `reason to believe' that he may be arrested on accusation of having committed a non-bailable offence. The expression `anticipatory bail' has not been defined in the Code. But as observed in Balchand Jain Vs. State of M.P.3, `anticipatory bail' means `bail in anticipation of arrest'. The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. When a competent court grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative. The Court went on to observe that the power of granting `anticipatory bail' is somewhat extraordinary in character and it is only in `exceptional cases' where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail" that such power may be exercised. The power being rather unusual in nature, it is entrusted only to the 3

(1976) 4 SCC 572

9

higher echelons of judicial service, i.e. a Court of Session and the High Court. Thus, the ambit of power conferred by Section 438 of the Code was held to be limited.

11.Historically, the Code of Criminal Procedure, 1898 (old Code) did not contain specific provision corresponding to Section 438 of the present Code of 1973. Under the old Code, there was a sharp difference of opinion amongst various High Courts on the question whether a Court had inherent power to make an order of bail in anticipation of arrest. The preponderance of view, however, was that it did not have such power. The Law Commission of India considered the question and vide its 41st Report, recommended introduction of an express provision in this behalf.

12.The suggestion of the Law Commission was accepted by the Central Government and in the Draft Bill of the Code of Criminal Procedure, 1970, Clause 447 conferred an express power on the High Court and the Court of Session to grant anticipatory bail. 1

13.The Law Commission again considered the issue and stated; "The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice.

It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith". [Law Commission of India, Forty-eighth Report, para 31]

14. Keeping in view the reports of the Law Commission, Section 438 was inserted in the Code. Sub-section (1) of Section 438 enacts that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or to the Court of Session for a direction that in the event of his arrest he shall be released on bail, and the Court may, if it thinks fit, direct that in the event of such arrest he shall be 1

released on bail. Sub-section (2) empowers the High Court or the Court of Session to impose conditions enumerated therein. Sub- section (3) states that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, he shall be released on bail.

15. In Gurbaksh Singh Sibbia (supra), the Constitution Bench was called upon to consider correctness or otherwise of principles laid down by the Full Bench of High Court of Punjab & Haryana in Gurbaksh Singh Sibbia Vs. State of Punjab4. The Full Bench of the High Court summarized the law relating to anticipatory bail as reflected in Section 438 of the Code and laid down eight principles which were to be kept in view while exercising discretionary power to grant anticipatory bail.

16. The Constitution Bench while disagreeing in principle with the constraints which the High Court had engrafted on the power conferred by Section 438 of the Code, inter alia, observed that the Legislature has conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail since it felt, firstly, that it would be difficult to enumerate the conditions under which 4

AIR 1978 P&H 1 : 1978 Crl LJ 20 (FB)

1

anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the matter of grant of relief in the nature of anticipatory bail. The Court said;

"Generalizations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher Courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by Courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges".

17. The Court felt that wide discretionary power conferred by the Legislature on the higher echelons in the criminal justice delivery system cannot be put in the form of straight-jacket rules for universal application as the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of 1

which must enter into the judicial verdict. A circumstance which, in a given case, turns out to be conclusive, may or may not have any significance in another case. While cautioning against imposition of unnecessary restrictions on the scope of the Section, because, in its opinion, over generous infusion of constraints and conditions, which were not to be found in Section 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with unreasonable restrictions, the Constitution Bench laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:

i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and 1

circumspection depending on circumstances justifying its exercise.

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

satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the

reasonableness of his belief, the existence of which 1

is the sine qua non of the exercise of power conferred by the Section.

iii) The observations made in Balchand Jain's case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as

conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.

1

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

Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.

v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest 1

founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

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

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

viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions 1

should be imposed on the applicant even at that stage.

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

18. At this juncture, it would be appropriate to note that the view expressed by this Court in Adri Dharan Das Vs. State of W.B.5 to the effect that while dealing with an application under Section 438 of the Code, the Court cannot pass an interim order restraining arrest as it will amount to interference in the investigation, does not appear to be in consonance with the opinion of the Constitution Bench in Sibbia's case (supra). Similarly, the observation that power under 5

(2005) 4 SCC 303

1

Section 438 is to be exercised only in exceptional cases seems to be based on the decision in Balchand's case (supra), which has not been fully approved by the Constitution Bench. On this aspect, the Constitution Bench stated thus:

"The observations made in Balchand Jain regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot therefore be treated as concluding the points which arise directly for our consideration. We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Sections 437 and 439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand Jain in an altogether different context on an altogether different point". (Emphasis Supplied)

19. It would also be of some significance to mention that Section 438 has been amended by the Code of Criminal Procedure (Amendment) Act, 2005. The amended Section is more or less in line with the parameters laid down in Sibbia's case (supra). However, the amended provision has not yet been brought into force.

20. Having considered the case in hand on the touchstone of the aforementioned parameters, we are of the opinion that the High 2

Court has committed a serious error in reversing the order passed by the Additional Sessions Judge, Amravati granting anticipatory bail to the appellants. The learned Sessions Judge passed the order after due consideration of the facts and circumstances of the case, in particular, the two dying declarations, one recorded in the presence of the parents of the deceased and the statements of the members of the Women Cell who had dealt with the case when on 15th July, 2006, the deceased had left the house with intention to commit suicide and therefore, it cannot be said that the judicial discretion exercised in granting anticipatory bail was perverse or erroneous, warranting interference by the High Court. The order passed by the Sessions Judge was supported by reasons to the extent required for exercise of judicial discretion in the matter of grant of bail. It may be true that some of the circumstances, noticed by the High Court in the impugned order, viz., no reference to lantern in the spot panchnama or the necessity of cleaning the lantern at 4 p.m. and/or availability of an inverter in the house etc., could have persuaded the Sessions Judge to take a different view but it cannot be said that the factors which weighed with the Sessions Judge in granting bail were irrelevant 2

to the issue before him, rendering the order as perverse. Moreover, merely because the High Court had a different view on same set of material which had been taken into consideration by the Sessions Judge, in our view, was not a valid ground to label the order passed by the Sessions Judge as perverse.

21. It also appears to us that the High Court has overlooked the distinction of factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted. In Dolat Ram & Ors. Vs. State of Haryana6, while dealing with a similar situation where the High Court had cancelled the anticipatory bail granted by the Sessions Judge in a dowry death case, this Court had observed that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail had to be considered or dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted, which, in our opinion, were missing in the instant case. Nothing was brought to our notice from which it could be inferred that the appellants have not co-operated in the investigations or have, in any manner, abused the concession of bail granted to them. As a 6

(1995) 1 SCC 349

2

matter of fact, Mr. Naphade, learned senior counsel representing the State, stated that after grant of anticipatory bail to the appellants, no investigation in the case has been conducted.

22. For the foregoing reasons, in our judgment, the impugned order setting aside the anticipatory bail granted to the appellants by the learned Additional Sessions Judge, cannot be sustained. Accordingly, the appeals are allowed; impugned order is set aside and the order dated 18th December, 2007 passed by the Additional Sessions Judge confirming the ad-interim anticipatory bail to the appellants, is restored. It goes without saying that nothing said by the High Court or by us hereinabove shall be construed as expression of any opinion on the merits of the case.

23. Both the appeals stand disposed of, accordingly. ..................................J.

(D.K. JAIN)

..................................J.

(R.M. LODHA)

NEW DELHI;

JULY 10, 2009.

2

http://www.indiankanoon.org/doc/238832/

SC upholds Mumbai HC order - Daughter in law to pay monthly rent to Mother in law as per rental agreement - PWDVA

IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8283 OF 2008
Sanchita Amitabh Dasgupta .. Petitioner.
Vs.
Amitabh Prashant Dasgupta & Anr. .. Respondents.
Mr.Nikhil Karnavat i/b Mr.Ajit Kulkarni for the petitioner.
Mr.Anil Dhavale i/b A.Apte for the respondents.
Coram: D.B. BHOSALE, J.
Dated : 17TH AUGUST, 2009
P.C.
. Heard learned counsel for the parties.

2. Counsel for the petitioner submits that the petitioner and
her husband were inducted in the flat by respondent no.2 –
mother-in-law by executing the leave and license agreement
dated 26.6.2006 and, therefore, the order of Family Court
directing her to vacate the flat and hand it over to respondent
no.2 is wrong and illegal. Rule expedited.

3. Under the leave and license agreement the petitioner is
liable to pay Rs.5,000/- per month to respondent no.2 which has
not been paid since long. The petitioner alone is in possession
of the flat. In the circumstances there shall be interim relief in
terms of prayer clause (b) subject to the petitioner depositing
the entire arrears of license fee under the leave and license
agreement dated 26.6.2006 in this court within a period of eight
weeks from today and shall also deposit monthly license fee
during pendency of this writ petition every month. If the
petitioner fails to deposit the amount, as aforestated, this
petition shall stand dismissed for non prosecution without
reference to the court. If the petitioner deposits the amount,
liberty to respondent no.2 to withdraw the said amount without
prejudice to her rights and contentions. Pendency of this
petition shall not operate as stay to further proceedings before
the Family Court.

(D. B. Bhosale, J.)

Supreme court order which does not change anything with above Mumbai HC order

---------------------------------------------------------------------------------------
Supreme Court Order
ITEM NO.6 COURT NO.4 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil)
No(s).26247/2009
(From the judgement and order dated 17/08/2009 in WP No.
8283/2008 of The HIGH COURT OF JUDICATURE AT BOMBAY)
SANCHITA AMITABH DASGUPTA Petitioner(s)
VERSUS
AMITABH PRASHANT DASGUPTA & ANR. Respondent(s)
(With appln(s) for exemption from filing c/c of the impugned
Judgment and prayer for interim relief )
Date: 19/07/2010 This Petition was called on for hearing
today.
CORAM :
HON'BLE MR. JUSTICE DALVEER BHANDARI
HON'BLE MR. JUSTICE DEEPAK VERMA
For Petitioner(s) Mrs.Neela Gokhale,ADv.
Mr.Vijay Kumar, Adv.
for Mr. Vishwajit Singh,Adv.
For Respondent(s) Mrs.Seema, Adv.
Mr.Nitin S.Tambwekar, Adv.
Mr.B.S.Sai, Adv.
For Mr. K. Rajeev,Adv.
Ms. Anagha S.Desai ,Adv
Ms.Seema Dhyavle, Adv.

UPON hearing counsel the Court made the following
O R D E R

We are not inclined to interfere with the impugned
order. The Special Leave Petition is, accordingly, dismissed.

(G.V.Ramana) (Neeru Bala Vij)
Court Master Court Master

SC explains 498a (a) and (b) - there must be an evidence of demand of dowry

REPORTABLE February 13, 2009
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 57 of 2002
Gopal ......Appellant
Versus
State of Rajasthan .....
Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J
1. Challenge in this appeal is to the judgment of a learned Single Judge of the Rajasthan High Court allowing the appeal of the State Government and holding the appellant guilty of offence punishable under Section 498-A of the Indian Penal Code, 1860 (in short ‘IPC’) while upholding the acquittal in respect of offence punishable under Section 306 IPC. The appellant was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000/-with default stipulation.

2. Background facts giving rise to the prosecution are as under:
On 4.7.1988, at about 10 p.m. Laxman Singh (P.W.13) who was S.I. in the Police Station Nimbaheda received an information from the Medical Officer Dr. R.D. Bhatt (P.W.15) from the Hospital and on receiving that information, Laxman Singh reached the hospital where Prem Chand was present who informed orally to Laxman Singh that in the morning all the persons of his family had gone to the field in the house; wife of his son Gopal, namely, Ram Kumari (hereinafter referred to as “the deceased”) was alone and in the noon, when he went to his house, he found the deceased unconscious and then he called his wife Lahar Bai (PW-4) who was living nearby and she also came there. Then he called doctor and doctor advised him that she should be taken to the hospital and in the hospital, when the treatment was going on, the deceased died.
This oral report was reduced into writing and the same is Ex. P/6 and on this report, Laxman Singh (P.W.13) registered Marg FIR No.6/88 under Section 174 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) and started investigation.
During investigation, post mortem of the dead body of the deceased was conducted by Dr. R.K. Gupta (P.W. 11) and Dr. R.D. Bhatt (P.W.15) and the post mortem report is Ex.P/4 and both the doctors have stated that cause of death of Smt. Ram Kumari was asphyxia and this may be probably due to opium poisoning and they also found 6 bruises, three on the right thigh and three on her right hip. Thereafter P.W.13 Laxman Singh came to the conclusion that accused Gopal who was husband of the deceased used to treat her with cruelty and used to beat her and a case for offence under Sections 498A and 306 I.P.C. was made out and he himself lodged FIR Ex.P/8 and on this FIR Ex.P/8 investigation of the case was done by Netrapal Singh (PW-14) who was S.H.O. in the police station Nimbaheda. After usual investigation challan was submitted in the Court of Magistrate for offence under Section 498A and 306 IPC from where the case was committed to the Court of Additional Sessions Judge, Nimbaheda.
Since the accused pleaded innocence trial was held and 15 witnesses were examined. The trial Court directed acquittal of the appellant inter-alia holding as follows:
(i) It has not been proved by the prosecution that the deceased has been subjected to cruelty and single act of cruelty or beating is not sufficient.
(ii) Since the deceased had undergone tubectomy operation after delivery of 3rd child and because of that she was not in a position to work and she used to feel restlessness and accused respondent used to ask her to work and there was dispute between husband and the wife on this point and such type of dispute cannot be covered.
Aggrieved by the judgment and order, State filed an appeal and as noted above the same was allowed.

3. In support of the appeal, learned counsel for the appellant submitted that the marriage took place some time in1976 and the date of occurrence is July, 1998 and therefore Section 113-B of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’) has no application. Further it is submitted that the ingredients of Section 498-A have not been established.

4. It has been concluded by the High Court that suicide has not been proved. Therefore, Section 498-A has no application. Section 498-A(b) relates to demand of dowry for which there is no evidence.

5. In response, learned counsel for the respondent-State submitted that the case is covered by Section 498-A(b). It is submitted that in any event injuries have been established and therefore Section 323 IPC has been clearly established. It is by way of reply learned counsel for the appellant submitted that no charge has been framed for Section 323.

6. The ingredients of Section 498-A are as follows:
“ 4 98A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation – For the purpose of this section ’cruelty’ means –
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

7. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to be taken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence. Under Section 304B it is ‘dowry death’ that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. A person charged and acquitted under Section 304B can be convicted under Section 498A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and others v. The State of Andhra Pradesh (AIR 1991 SC 1142). Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

8. The above position was highlighted in Balwant Singh & Ors. v. State of H.P. [2008(10) JT 589].

9. Section 498A IPC has two limbs. The first limb of Section 498A provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished. ‘Cruelty’ has been defined in clause (a) of the Explanation to the said Section as any willful conduct which is of such a nature as is likely to drive to a woman to commit suicide. When there is demand of dowry, the case comes under clause (b) of the Explanation to Section 498A. Clause (a) of the Explanation has definite application to the facts of the present case. Additionally, effect of Section 113 A of the Indian Evidence Act cannot be lost sight of.

 

10. Further as per Section 113 A of the Evidence Act when the question as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband. This has not been rebutted by the appellants.

11. For bringing in application of Section 306 IPC, suicide has to be established. In the instant case, the trial Court and the High Court have categorically held that no suicide has been established.

12.So far as Section 498-A(b) is concerned, there must be an evidence of demand of dowry.There is no evidence in that regard adduced by the prosecution. That being so, as rightly contended by learned counsel for the appellant Section 498-A(b) has no application.

13. The crucial question is whether the appellant can be convicted in terms of Section 323 IPC. Even if it is so as contended by learned counsel for the respondent, considering the fact that the appellant has already suffered custody of about 6 months, we do not consider it necessary to go into that question. The appeal is allowed. The conviction as recorded is set aside. The bail bonds executed by the appellant for release on bail pursuant to the order dated 14.1.2002 shall stand discharged.

……………………………………J.
(Dr. ARIJIT PASAYAT)
……………………………………J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
February 13, 2009