Posts tagged ‘anticipatory bail’

Arneshkumar v/s State of Bihar and another

The Supreme Court in Arneshkumar v/s State of Bihar and another, observed that there is rampant misuse of the provisions of Sec. 498-A of IPC and Sec 3 & 4 of Dowry Prohibition Act. In order to bring the situation under control the Supreme Court has passed the following guidelines.
The Supreme Court, through this judgement ensures that -
i. The Police officers do not arrest accused unnecessarily and
ii. The Magistrate do not authorise detention casually and mechanically.
The State Governments are directed by this Judgement:
1. To instruct the Police officers not to automatically arrest when the case is registered under section 498-A of the IPC and Dowry Prohibition Act, until it satisfies the necessity for arrest under the parameters laid down in section 41 of CrPC.
2. The Police Officers to be provided with the check list containing specified sub-clauses under section 41(1)(b)(ii) of CrPC. The said check list shall be duly filled and the police officer shall furnish the reasons and materials which necessitated the arrest, while producing the accused before magistrate for further detention.
3. The Magistrate on inspecting the report furnished by the Police officer, only after recording its satisfaction, shall authorise the detention of the accused.
4. The decision not to arrest an accused is to be forwarded to the Magistrate within 2 weeks from the date of institution of case with a copy to Superintendent of Police which may be extended by the superintendent of Police for reasons to be recorded in writing.
5. Notice of appearance in terms of section 41 CrPC shall be served to accused within 2 weeks of institution of the case, which may be extended by the Superintendent of Police of District for the reasons to be recorded in writing.
6. Failure to comply with the directions given above, the police officer concerned shall be liable for departmental action and punished and , the contempt of court is to be instituted against them before the High Court having territorial jurisdiction.
7. Authorising detention without recording reasons as above said, by the Judicial Magistrate concerned, shall make the Magistrate liable for departmental action by the appropriate High Court.

The Hon’ble Supreme Court also clarifies that the directions aforesaid shall not only apply to the cases under sec. 498-A of the IPC or sec. 4 of the Dowry Prohibition Act, but also to such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
Authored by:
Shrinivasreddy Mudagannavar
Intern
Mento Associates

IS ANTICIPATORY BAIL AVAILABLE WHEN A COMPLAINT IS NOT REGISTERED?

Registration of an FIR is not mandatory for a person to approach the court of law for an order of anticipatory Bail. There are various citations of Supreme Court and High Courts in this regard.   Even in the absence of a pending criminal complaint against a person, if such person has an apprehension of arrest, he can approach the Sessions court or High court for an order of Anticipatory Bail. The apprehension of arrest may be elicited from the facts and circumstances of the matter, conduct of respondent police, the acts and communications of the potential complainant etc. On the whole, the applicant must convince the court, primarily that there is every likelihood for a criminal complaint to be lodged against him and the probability of respondent police arresting him based on the said complaint.

             An applicant cannot expect a blanket order from the court granting Anticipatory Bail. The applicant need to specify in his application the probable sections under which his opponent  may file a complaint against him,  which is even more difficult in comparison to a scenario where the complaint is already registered against him. This is because, if a complaint is already registered against the applicant, then the applicant as well as the court,  both are  convinced as to what are the sections which constitute the alleged offence. However in a case where the FIR is not yet registered, it is left to the mental exercise of both the applicant as well as the court to figure out the probable offence.
                                  
             The requirement of spelling out the exact provisions of the offence in an application for Anticipatory Bail may cause a technical difficulty for the applicant.  For instance if a court grants anticipatory bail to an applicant for an offence punishable under certain penal sections, his opponent can still trap him by lodging a complaint under some other sections. This dilutes the effect of the result got by the applicant. However the applicant is entitled to file for a fresh anticipatory bail and the obtainment of previous anticipatory bail will definitely be a plus factor while considering the second bail application.

             Similarly in matters where the FIR is not yet registered, courts have a tendency to grant anticipatory bail for limited periods like 45 days, 60 days etc. This again puts the applicant into some inconvenience, as his opponent may wait for the period to elapse for filing a complaint against him. In such a scenario the applicant can file one more application and obtain an anticipatory bail. The earlier anticipatory bail will definitely assist him in the obtainment of a new anticipatory bail. 

Criminal Complaints In Matrimonial Matters

There are various legal safeguards for women to rely on, in case they are subjected to cruelty and harassment by husband or in-laws pertaining to matrimonial matters. The teeth of law are very much sharpened to protect the interests of fair sex. 

If a wife reports the incidents of cruelty, mental or physical, or the demand of dowry by her husband or in laws, a police officer is bound to register an FIR and investigate the matter. The police authorities in such cases act in a very mechanical manner. Even if there is no requirement to arrest the accused persons, they tend to immediately arrest the accused persons and put them behind bars. This, many times result in the torture of innocent persons, just because the legal system is weighed in favor of women. There are several instances when women misuse the benefits of law and lodge false complaints to settle personal scores. Though, in the end a court of law may acquit the accused, the trauma in carrying on with the case for years cannot be underestimated.

The accused in matrimonial offences can avail the benefit of anticipatory bail to avoid arrest and resultant torture in the hands of the police. If they sense the possibility of filing of false criminal case by the wife or her relatives, then they are advised to approach the Sessions Court or the High Court for an order of anticipatory bail. As a matter of right, a person cannot ask a court for the grant of anticipatory bail. The court will look into the facts of the case and grant bail in appropriate cases. Once anticipatory bail is granted, the police officials cannot arrest and detain the accused. They can arrest him, but they have to release him immediately.

What is anticipatory bail?

The Code of Criminal procedure 1973 provides the valuable right of Anticipatory Bail to a person who apprehends arrest in a non-bailable offence. This power to enlarge a person on anticipatory bail is vested only in High Court and Court of Sessions. After a person is enlarged on anticipatory bail in connection with an offence, if an officer in charge of police station arrests him, then he shall be immediately released on bail and shall not be subjected to unnecessary restraints.

The Court granting anticipatory bail may impose few conditions like to be present for interrogation before the investigation officer, not to induce or threat witnesses, not to leave the country without the permission of the court etc. The pendency of investigation is not a ground to refuse anticipatory bail. Even after the summons is issued to an accused person from the court, he can be enlarged on anticipatory bail, if the court thinks fit. The anticipatory bail granted will continue till the conclusion of trial or its cancellation.

It is not compulsory that the FIR should be registered against a person or that his name shall be there in the FIR to be eligible for applying for anticipatory bail. What is required is that there should be a reasonable apprehension of arrest by the person applying. It can be filed at a place where the accused apprehends arrest.