Thursday, 21 April 2016
How to get bail in 498a?
There are many types of bails in India:
Interim Bail: When the court grants a bail on some condition it is called Interim Bail. Yes the interim bail can be extended and if the period of interim bail gets over and the accused person does not prays before the court for confirmation and/or continuation of the interim bail then the liberty granted under the interim bail is cancelled and the accused person be taken into custody or W/A will be issued against him.
Notice Bail: Accused or alleged person (before FIR) apply for anticipatory bail under CrPc 438 to the court of session. Court can grant protection notice before arrest. It can be from three to seven days. Accused can apply anticipatory bail again after receiving notice of arrest by PS.
Transit Bail: If a person apprehends arrest in a case but is in a different state, he can apply for transit bail in the court where he is, the court can grant him transit bail, which is interim protection from arrest for some days so as to enable that person to go to that place and seek bail from the regular court.
Regular Bail: A person may be accused of a Bailable or a Non Bailable offence. In case of a bailable offence, the accused has a right to secure his release by applying for bail under S. 436(1) of Cr P C, while in case of non-bailable offence, the accused may be released by the court on its discretion after he applied for bail under S. 437(1) of Cr P C. In case of a bailable offence, if the accused in indigent, he may be released my executing a personal bond without sureties. The application for bail is made to the court in which the accused is tried (that depends on the offence). However, S. 439 gives special powers to HC and Court of Session to release a person on bail (after imposing certain conditions), and so an application may be made to HC or Court of Session as well if the person is under arrest. No Verification, Notary, and Affidavit required.
Stay on arrest: Generally arresting is stayed under Art 226 of constitution, but is only up to the time of filing of charge sheet only, if there are appropriate ground. And when the charge sheet is filed application is filed for quashing and stay of arresting under 482 Cr.P.C. If charge sheet has been already filed 482 is the proper remedy.
Bail on Surety: If a person is arrested, then he or she may be able to get bail. Bails or bail bonds are essentially payments or deposits made by the arrested person that allows him or her to leave jail. However, this is just one side of the bail bond. On the other side, the bail bond would include certain terms and conditions fixed by the court. For example, a common condition added to the bond is that the person be available in the court whenever required by law. Other conditions may include that the person should leave India or the city without the permission of the court. While unfortunate, it is very important for you and everyone to be aware of the laws regarding bail and the process of how to get bail in India.
Anticipatory Bail (not in some states): Under Indian Criminal Law, there is a provision for anticipatory bail under Section 438 of the CPC. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence. On filing AB, the opposition party is notified about the bail application and the opposition can then contest the bail application in court (public prosecutor can also be used to do this). Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested. Anticipatory bail -a term not found in any Indian legislation- refers to a pre-arrest order passed by a court that says that in the event a person is arrested, he is to be granted bail. The ‘anticipatory’ labelling of the order can be misleading as it is not an order which grants a person bail before he is arrested as bail cannot come into effect before a person is arrested. Having said that, the fundamental difference between an order for bail and one for anticipatory bail is that the former is granted only after arrest (and becomes operative subsequently) but the latter is granted before arrest and hence is operative from the moment of arrest. In India, anticipatory bail can only be invoked if a person is apprehending arrest for a non-bailable offence (as under s. 438 of the Criminal Procedure Code). A non-bailable offence is one for which the police if not empowered to release the arrested person on bail (except under certain special circumstance not dealt with here). Anticipatory Bail / Bail, is a provision / direction through which a person, who is apprehending arrest or arrested, may not be arrested or be released from custody. If a non-bailable offence (such as 498A, rape etc.) is registered against you, it is lawful for the investigating agency to arrest you, after ad-hearing to the guidelines (CrPC 41 to be specific) as mentioned under section 2 of this document (Arrest) above. To avoid arrest in such cases, you need to seek Anticipatory Bail (A.B.) / Bail. The difference between anticipatory bail and bail is that, in anticipatory bail, you apprehend arrest and secure a pre-arrest bail (under CrPC 438) subject to certain conditions and enjoy not being arrested.In case of bail, you were taken into custody and from there you apply for bail (under CrPC 437 / 439) and if granted, released from custody.
Eligibility: 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. Anticipatory Bail can be granted by Sessions Courts, High Courts and Supreme Court.
Conditions: 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.
Qualification: 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 cancelled. 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.
RIGHTS OF ARRESTED PERSON: The following are the rights of an arrested person guaranteed under the Indian Constitution as well as under the Criminal Procedure Code, 1973,
(1) Right to be informed of the grounds for arrest: In every case of arrest with or without a warrant the person arresting shall communicate to the arrested person, without delay, the grounds for his arrest (Art, 22 (1) of the Constitution of India, Secs. 50 (1), 55, 75 of Cr.P.C.).
(2) Right to be informed of right to bail: The arrested person must be informed of his right to be released on bail when he is arrested without warrant in a bailable offence (Sec. 50 (2) & (436)).
(3) Right of not being detained for more then 24 hours without judicial scrutiny: In case of every arrest the person making the arrest is required to produce the arrested person before the Magistrate within 24 hours from the time of arrest. The time required for journey from the place of arrest to the court of magistrate will be excluded in computation of the duration of 24 hours (Art. 22 (2) of the Constitution and section 57),
(4) Right to consult a legal practitioner: Both the Constitution and the provisions of Cr.P.C. recognize the right of every arrested person to consult a legal practitioner of his choice (Art. 22 (1) and Sec. 303)
Where to apply for bail
1. District Court
2. Sessions Court
3. High Court
4. Supreme Court
Usually it is advised to apply for bail in district / sessions court, and in case it is cancelled, and then move to sessions (in case first applied in district court)/ high court (in case first applied in Sessions Court) for bail. It is observed that usually at max at the high court level only the bail is granted. It is also advised to seek anticipatory bail for all the accused expect husband in matrimonial dispute cases, and once the bail is secured, then move for bail of husband, but this process is not mandatory. One has the liberty to seek bail for all the accused on one go.
SC Explains Anticipatory Bail: The 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.
ii) 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.
CrPC 41: When police may arrest without warrant:
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person:-
(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or
(c)who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under subsection (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of person specified in section 109 or section 110.
Section 437 in The Code Of Criminal Procedure, 1973
437. When bail may be taken in case of non- bailable offence.
(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.]
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but that there are sufficient grounds for further inquiry into his 1 guilt the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail] or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary-
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice.
(4) An officer or a Court releasing any person on bail under sub- section (1) or sub- section (2), shall record in writing his or its 1 reasons or special seasons] for so doing.
1. Subs. by Act 63 of 1980, s. 5 (w. e. f. 23. 9. 1980 ).
(5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
438. Direction for grant of bail to person apprehending arrest.
(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrersted, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.]
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including -
(i) a condition that the person shall make himself available for interrogation by a police officer and when required;
(ii) a condition that the person shall not, directly or indirectly,- make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer,
(iii) a condition that the person shall not leave India without the previous permission of the court;
(iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, 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 if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).