PARAMETER
OF BAIL IN MATRIMONIAL CASES
Anil
K Khaware
Advocate
A PRELUDE:
Crime
in society is as old as civilization itself. The law is codified in due course
and Do’s and Don’ts are prescribed. The departure or deviation from the code of
conduct is perceived as crime, if the effect of the deviation leads to causing
harm to any other’s body, property or materials. The law may act as a
deterrent, but cannot possibly wipe out crime altogether. Therefore, system of punishment is in place,
should there be departure from code of conduct. The society and governing
system is dynamic and hence, to meet the situation and exigencies laws are
framed. The constitution itself contains the governing principles and sets out
object of the nation. However, to amalgamate change in a system and society,
amendment in law 8is also felt necessary.
The Constitution of India for instance, has been amended for more than
100 times, ever since constitution was adopted on 26th November
1949. The law & various Acts accordingly have undergone periodic changes as
dynamism is a quintessential principle of life. The family system, kinship and
relationship have undergone metamorphosis, over the years and changes has
occurred, whether positive or negative. The most relevant definition of law as
on today is propounded by Austin, who defined law as a command of sovereign backed by sanction. Clearly, law has
to emanate from sovereign, else, the law shall be meaningless and shall lead to
turmoil. In ancient or medieval India Sovereign was headman, Panch, Pradhan or
king. The Aristocracy, dictatorship, monarchy and democracy are the system of governance
that has developed in due course. Many feel, though, that despite some
pitfalls, democracy is the best system of governance. However, in democracy
also power of people vested in a sovereign, who may have council of ministers
to run the system. The command may come only from sovereign. The command
presupposes power and unless there is a sovereign command, there cannot be any
command. It is so, as it is the command which compel or propel people to follow
the command, else, people shall be indifferent to command. Assuming there is
violation or negation of command by anyone, there comes sanction i.e fear of
punishment which implies people to obey law.
The
crime is an offshoot to the system itself. The crime is a wrong committed
against state and therefore the onerous duty of trial and seeking punishment
against the crime and criminals falls on the prosecution represented by state.
The prosecutor is the legal counsel representing the state and the police has
the duty to investigate and file charge sheet if case against an accused is
made out. The case was thereafter sent for trial and charges are framed by the
court before proceeding with trial.
The
case within a family is quite different and modern day life style have caused
bickering, probably, because of high paced life resulting into turning to short
fuse. Rationality being casualty in such a situation. The need and greed has
substantive mismatch. The desire and passion of having more leads the one to a
different territory of anguish and depression sets in. How much is too much
cannot be ascertained and rat race in life continues. The failure of meeting
aspiration finds outlet of seeking that from the other quarter and the
expectation from the parents of the wife gets its genesis from here. The
discussion in this regard goes to another level and quipping, blaming and
castigating each other’s family becomes norm. The quarrel thus ensue and this
leads to violence and cruelty. The role of state therefore starts right from
here. In earlier days the quarrel of family did not find place in courts, for,
it was considered as taboo and disparaging. The time has changed and so did the
attitude and the courts of law is flooded with matrimonial litigation.
The
cases/complaints that reaches police station may not contain gospel truth. Some
time it is half truth and further it may contain lies and subterfuges. The
complaint lodged by a woman may lead to mediation, conciliation or ends up in
registering F.I.R. The complaint, if motivated contains innuendo and frames in-laws
for no rhyme and reason and merely with a view to wreak vengeance. The Sections
498-A/406/120 B of Indian Penal Code is non-bailable. The wife and husband and
his family contest the cases and the fence is drawn and case is set out or
vendetta is unleashed.
It
is at this stage that the need of obtaining bail is felt. The husband and
family of husband may find their abode in jail, if bail is not granted to them.
Dowry demand and cruelty on women finds its place under section 498-A of Indian
Penal Code, whereas section 406 of Indian Penal Code relates to retaining the
articles, jewelleries of a women in in-laws house and if the husband and
in-laws allegedly conspired against the wife then all such people are named as
accused and trap of section 120 B of Indian Penal Code is invoked.
BAIL: DEFINED
Bail commonly means release on one’s own bond, with or without sureties.
The basic doctrine of criminal law is that accused person shall be presumed to
be innocent until proved guilty beyond reasonable doubt. The granting of bail
does not tantamount to set the accused free, but it is akin to release him from
custody and to entrust him to his own bond and to the custody of his sureties
who shall be mandated to produce him to appear at his trial if and when directed
by the courts. Therefore, Bail is a mere security obtained from a person
arrested relating to an offence with a view to securing his presence during the
trial process.
The
bail in matrimonial cases is one of the most vexed topic, in as much as the
F.I.R if registered u/s 498-A by a woman is non-bailable and more oftenly,
in-laws are also roped in the F.I.R. The provisions are also misused oftenly as
the trend over the years suggests. The fear psychosis meted out to in-laws of
wife in particular has prompted the hon’ble Supreme Court to issue
directions/guidelines so as to law of the land should be used properly and no
segment should remain on perpetual danger of going behind bars. ‘Bail is a rule, jail is an exception’ is a legal doctrine that
was laid down by the Supreme Court of India in a landmark judgment of State of Rajasthan vs. Balchand alias
Baliya AIR (1977) 2447. The legal doctrine, in this case, was laid down by
Justice V. Krishna Aiyer, who based it on fundamental Rights guaranteed by the constitution
of India.
Still,
there is no denying that in mechanical manner bails are rejected by the courts
in matrimonial cases. In heinous crimes and when culpability of the accused is
palpable, of course, bail cannot be granted. However, the misuse of provisions
in matrimonial cases needed censure and therefore in a matter captioned
as 2017 (II) ILR - CUT- 497 (S.C.), the hon’ble Supreme Court ( CORAM: Hon’ble Justice
ADARSH KUMAR GOEL, & hon’ble Justice UDAY UMESH LALIT, captioned as
RAJESH SHARMA & ORS .Vs
STATE OF U.P. & ANR has passed
certain directions in extension to earlier direction passed in Arnesh Kumar
vs
State of Bihar 2014 CrlLJ SC.
The husband, along with
other relatives were accused of causing cruelty to the wife and there were
dowry demands. The hon’ble Supreme Court had to lay down parameter in extension
to Arnesh Kumar case with a view to
prevent over-implication. It was felt that in most of the cases the relatives
of the husband are also being dragged into Courts in cases of Section 498A,
whereas it cannot be implied that that they have been party to the offence. The
bench also referred 243rd Law Commission Report and 140th
report of the Rajya Sabha Committee.
KINDS
OF BAIL
The
provision of bail is encapsulated in the
Criminal Procedure Code. Broadly, the bail could be of following types: -
Regular
Bail: - Section 439 of Cr.P.C contains the
provision. Under this section bail could be granted to a person who has been
arrested and/or was either in police custody or judicial custody. Section 437
of Cr.P.C contains the principles of regular bail that may be preferred before
a Judicial Magistrate or Metropolitan Magistrate as the case may be.
Anticipatory
Bail: - Section 438 of Cr.PC contains the
principles. The anticipatory bail relates to pre-arrest bail and may only be
granted by Sessions Court or High Court. It is granted when someone apprehends
arrest in some crime.
Interim Bail: - The interim bail is of shorter duration and before
finally arriving at decision, the courts , if satisfied that interim bail could
be granted, during the pendency of the bail petition itself, interim bail or
protection is granted to the accused.
Default
bail: - The principle is there I Section
436A of the code of criminal procedure. The under trial accused is in judicial
custody and may have undergone half of the maximum punishment awardable for the
offence and the trial still continues, then, default bail is granted..
Transit
Bail: This is not a type of bail but is in practice in certain
circumstances. It comes in operation if F.I.R against an accused is registered
in different town, whereas the accused may be resident of other town. With a
view to afford the accused to seek bail and take steps in this regard in a
place where F.I.R is registered against him protection for arrest for limited
period is granted to him. This is for short duration such as for 10-15 days.
The reason being that the court, where the accused is an ordinary resident
shall have no jurisdiction, as the F.I.R is registered in another location and
finally only the courts of that jurisdiction can decide on the issue of bail.
The provision in vogue is therefore, an enabling provision to secure the
interest of justice.
The courts while deciding on
the plea of baikl on behalf of the accused weighs the facts of the case on the
touchstone of law and on the following premise:
(a) nature of accusation and severity of punishment in case of
conviction and nature of supporting evidence.
(b) reasonable apprehension of tampering with witnesses or apprehension
of threat to the complainant
(c) prima facie
satisfaction of the court in support of the charge
Prescription from Supreme Court:
(i)
Cases where a bail application is filed with at least one clear
day’s notice to the Public Prosecutor or the complainant, the same may be
decided on the same day.
(ii)
Merely because recovery of disputed dowry items is to take place
that should not be a ground for denial of bail.
(iii)
The role of individual, prima facie involvement of accused ,
need of arrest for custodial interrogation are the aspect needed appropriate
weighing
(iv)
In respect of the person living abroad impounding of passports
or issuance of Red Corner Notice should not be adopted as a routine exercise.
(v)
The District Judge or a designated senior judicial officer
nominated by the District Judge may club all connected cases between the
parties arising out of matrimonial disputes so as to take a wholesome c view.
(vi)
The necessity of personal appearance of all family members and
particularly outstation members should be avoided.
(vii)
Further, the trial court ought to generally grant exemption from
the personal appearance or permit appearance by video conferencing without
adversely affecting the progress of the trial or appearances may be permitted
though counsel.
However, these directions shall not apply to the offences
involving tangible physical injuries or death.
Whether the accused/prospective accused can seek
ANTICIPATORY bail prior to registration of F.I.R
The basic rule is that in case
F.I.R is registered against an accused and
he is alleged to be involved in a non-bailable offence, then only he may approach courts of law and not otherwise.
However, the vexed point earlier was as to whether only registration of F.I.R
against the accused shall lead to apprehension of arrest and qualifies the
accused to approach the courts of Sessions or High Court or even prior to the
registration of F.I.R, if there is a
reasonable apprehension of arrest, one may approach courts of law. The issue is
now settled and it is no longer res integra
and it is held that apprehension of arrest shall not be contingent on
registration of F.I.R and even prior to registration of F.I.R for interim bail,
the accused alleged to be involved in any offence could move courts to seek
anticipatory bail. Some of the judgments in this regard are as under:
|
S.N |
Particulars |
Remark |
|
1. |
Gurbaksh Singh Sibbia v. State
of Punjab, AIR 1980 SC 1632 at p.
1648 : 1980 Cri LJ 1125 : (1980) 2 SCC 565, |
a Constitution bench of the Supreme Court has held that the
filing of a First Information Report is not a condition precedent to the
exercise of the power to grant anticipatory bail under S. 438 Cr.P.C. and
that the imminence of a likely arrest founded on a reasonable belief can be
shown to exist even if an F.I.R. is not yet filed. |
|
2. |
K.
Rajasekhara Reddy v. State of A.P., 1999 Cri LJ 1933 at p. 1935 (AP) |
it has been held that the filing of an F.I.R. and registration
of a crime by the police is not a condition precedent to the exercise of the
power under S. 438 of Cr.P.C. Jurisdiction of the High Court can be invoked
by any person even in the absence of registration of a crime and there is no
requirement of furnishing the crime number as such. There is also no
requirement that a copy of the F.I.R. should be made available for the
purpose of considering the application under S. 438 of Cr.P.C. |
|
3. |
(2) Sanjeev
Kohli & Ors. vs. State 2005(1) JCC 510. |
The direction was that in the
event an FIR is registered against the petitioners/accused in respect of the complaint referred to in
the notice bearing No. R13/CAW-CELL/NW Delhi, Pitam Pura issued on 9th March,
2005, the petitioners shall be given seven days notice prior to their
arrest”. |
|
4. |
Prem Wati vs.
State 93(2001) DLT 646. |
it is ordered that whenever
FIR is registered and petitioner is sought to be arrested, she would be given
seven days‟ time
in writing. Petitioner shall participate and co-operate in the investigation,
as and when required. |
|
5. |
In the case of In re
Digendra Sarkar, 1982
Cri LJ 2197 at p. 2199 (Cal) : 1982 (2) Cal HN 317 |
Section
438 of the Code applies even when there is no “First Information Report” and
no case for commission of a non-bailable offence has been registered against
a person. If a person has reason to believe that he may be arrested on an
accusation of having committed a non-bailable offence, although no “First
Information Report” was filed against him, he may appear before the Court and
apply for an order for his release on bail in the event of his arrest. The
filing of a “First Information Report” is not a condition precedent to the
application for anticipatory bail and in such a case, the person having
reason to believe that he may be arrested on an accusation of non-bailable
offence may appear before the High Court or the Court of Session |
|
6. |
(v) In Saurabh
Ajit Nerukar vs. State through SHO Mandir Marg New Delhi in Bail Appln.
1304/2014 decided on 30.05.2014. (Delhi High Court) |
It was directed that Five (5)
days advance notice shall be issued to the petitioner’s counsel, in the event of
arrest of the petitioner, in case FIR under Sections 406/498A IPC is
registered against the petitioner on the complaint of the complainant pending
before CAW Cell. The petitioner shall, however, join the investigation as and
when required”. |
GRANTING OF BAIL AFTER REGISTRATION OF F.I.R
Delhi High Court vide order dated 4th August, 2008 in Chander Bhan versus State5(2008) 151 DLT 691 directed issuance of following
guidelines for bail :
Police
Authorities: (a) Pursuant to directions given by the Apex Court, the
Commissioner of Police, Delhi vide Standing Order No.330/2007 had already issued guidelines for arrest in the dowry
cases registered under Sections 498-A/406 IPC and the said guidelines should be
followed by the Delhi Police strictly and scrupulously. (i) No case under
Section 498-A/406 IPC should be registered without the prior approval of
DCP/Addl.DCP. (ii) Arrest of main accused should be made only after thorough investigation
has been conducted and with the prior approval of the ACP/DCP. (iii) Arrest of
the collateral accused such as father-in-law, mother-in-law, brother-in-law or
sister-in-law etc. should only be made after prior approval of DCP on file. (b)
Police should also depute a well trained and a well behaved staff in all the
crime against women cells especially the lady officers, all well equipped with
the abilities of perseverance, persuasion, patience and forbearance. (c) FIR in
such cases should not be registered in a routine manner. (d) The endeavour of
the Police should be to scrutinize complaints very carefully and then register
FIR. (e) The FIR should be registered only against those persons against whom
there are strong allegations of causing any kind of physical or mental cruelty
as well as breach of trust. (f) All possible efforts should be made, before
recommending registration of any FIR, for reconciliation and in case it is
found that there is no possibility of settlement, then necessary steps in the
first instance be taken to ensure return of stridhan and dowry articles etc. by
the accused party to the complainant.”
The wife alleged physical
and mental cruelty at the hands of the husband and accused him under Section
498A, IPC. The husband, however, denied all the charges. In a case reported
as Manju Ram Kalita v. State of Assam
(2009) 13 SCC 330 The Court held that “Cruelty” for the purpose of Section
498-A IPC is to be established in the context of Section 498-A IPC . The conduct
of the man and weighing the gravity or seriousness of his acts shall be
relevant. Moreover, it is also to be ascertained if it was likely to drive the
woman to take extreme step. It is to be established that the woman has been
subjected to cruelty continuously or at least in close proximity of time of
lodging the complaint. It is a settled proposition of law that petty quarrels
cannot be dubbed as “cruelty” so as to
fall within the confine of of Section 498-A IPC.
The hon’ble Supreme Court
referred to the case of S. Hanumantha Rao v. S. Ramani 1999)
3 SCC 620 for the meaning of mental
cruelty. as Mohd. Hoshan v. State of A.P(2002) 7 SCC 414 Raj Rani v. State (2000) 10
SCC 662 ], Sushil Kumar
Sharma v. Union of India(2005) 6 SCC 281
and the aforesaid cases are relevant in the context.
REMARK
Section 41 of Cr.P.C empowers the police to arrest any accused
without warrant and the same provision was being used to the hilt, but section
41 A was added in Cr.P.C w.e.f 1.11.2010 and some fetter is attached to the
said power of Police and prior notice to
the accused was made necessary. Still, the power of the police somewhat remained
intact, in as much as it was left to the police discretion if section 41 A
notice was required to be sent and thus misuse of the power still remained
vested in police. Then came the milestone judgment of hon’ble Supreme Court in
a matter reported as Arnesh kumar vs
State of Bihar 2014 CrlLJ SC which
has laid down guidelines so as to prevent abuse of the power of police and the tyranny of accused at the behest of
powerful people could be mitigated, at least so far as related to arrest at the
very onset in matrimonial cases u/s 498-A IPC is concerned. The safeguard laid
down in Arnesh Kumar (supra) and Rajesh kumar RAJESH SHARMA & ORS .Vs STATE
OF U.P. & ANR (supra) have somewhat alleviated
the misery of the persons, accused of offence u/s 498 A /406/120 B of Indian
Penal Code. Even the guideline towards bail qua the accused of such offences
are quite clear and the fear of sudden surfacing damocle sword does not persist
in the mind of accused of such matrimonial cases anymore and the safeguard helped
in a way to manage a level playing field.
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