In
the Bail matter of
Section
498A, 377
Relevant Judgments :
1.
Arnesh Kumar V State of Bihar
Head: Misuse of 498A IPC and
no automatic arrest
Observations by the Court:
There is phenomenal increase in matrimonial
disputes in recent years. The institution of marriage is greatly revered in
this country. Section
498-A of the IPC was introduced with avowed object
to combat the menace of harassment to a woman at the hands of her husband and
his relatives. The fact that Section 498-A is
a cognizable and non-bailable offence has lent it a dubious place of pride
amongst the provisions that are used as weapons rather than shield by
disgruntled wives. The simplest way to harass is to get the husband and his
relatives arrested under this provision. In a quite number of cases, bed-ridden
grand-fathers and grand-mothers of the husbands, their sisters living abroad
for decades are arrested. “Crime in India 2012 Statistics” published by
National Crime Records Bureau, Ministry of Home Affairs shows arrest of
1,97,762 persons all over India during the year 2012 for offence under Section 498-A of
the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under
this provision in 2012 were women i.e. 47,951 which depicts that mothers and
sisters of the husbands were liberally included in their arrest net. Its share
is 6% out of the total persons arrested under the crimes committed under Indian Penal
Code.
It accounts for 4.5% of total crimes committed under different sections of
penal code, more than any other crimes excepting theft and hurt. The rate of
charge-sheeting in cases under Section 498A, IPC is
as high as 93.6%, while the conviction rate is only 15%, which is lowest across
all heads. As many as 3,72,706 cases are pending trial of which on current
estimate, nearly 3,17,000 are likely to result in acquittal.
Arrest brings humiliation, curtails freedom and
cast scars forever. Law makers know it so also the police. There is a battle
between the law makers and the police and it seems that police has not learnt
its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of
its colonial image despite six decades of independence, it is largely
considered as a tool of harassment, oppression and surely not considered a
friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded desired
result. Power to arrest greatly contributes to its arrogance so also the
failure of the Magistracy to check it. Not only this, the power of arrest is
one of the lucrative sources of police corruption. The attitude to arrest first
and then proceed with the rest is despicable. It has become a handy tool to the
police officers who lack sensitivity or act with oblique motive.
2.
Sanjay Chandra V CBI
Head: No custody required
after filing of charge sheet
Court observed:
In para “26) When the undertrial prisoners are
detained in jail custody to an indefinite period, Article 21 of
the Constitution is violated. Every person, detained or arrested, is entitled
to speedy trial, the question is : whether the same is possible in the present
case. There are seventeen accused persons. Statement of the witnesses runs to
several hundred pages and the documents on which reliance is placed by the
prosecution, is voluminous. The trial may take considerable time and it looks
to us that the appellants, who are in jail, have to remain in jail longer than
the period of detention, had they been convicted. It is not in the interest of
justice that accused should be in jail for an indefinite period. No doubt, the
offence alleged against the appellants is a serious one in terms of alleged
huge loss to the State exchequer, that, by itself, should not deter us from
enlarging the appellants on bail when there is no serious contention of the
respondent that the accused, if released on bail, would interfere with the
trial or tamper with evidence. We do not see any good reason to detain the
accused in custody, that too, after the completion of the investigation and
filing of the charge-sheet.
3.
Lalita Kumari V. State of UP
Head: Registration of FIR disclosing cognizable
offence is mandatory and arrest is not; hence these are two different things
Court observed:
“98) While registration of FIR is mandatory,
arrest of the accused immediately on registration of FIR is not at all
mandatory. In fact, registration of FIR and arrest of an accused person are two
entirely different concepts under the law, and there are several safeguards
available against arrest. Moreover, it is also pertinent to mention that an
accused person also has a right to apply for “anticipatory bail” under the
provisions of Section
438 of
the Code if the conditions mentioned therein are satisfied. Thus, in
appropriate cases, he can avoid the arrest under that provision by obtaining an
order from the Court.
99) It is also relevant to note that in Joginder Kumar vs. State of U.P.
& Ors. (1994) 4 SCC 260, this Court has held that arrest cannot be made
by police in a routine manner. Some important observations are reproduced as
under:-
“20…No arrest can be made in a routine manner on a
mere allegation of commission of an offence made against a person. It would be
prudent for a police officer in the interest of protection of the constitutional
rights of a citizen and perhaps in his own interest that no arrest should be
made without a reasonable satisfaction reached after some investigation as to
the genuineness and bona fides of a complaint and a reasonable belief both as
to the person’s complicity and even so as to the need to effect arrest. Denying
a person of his liberty is a serious matter. The recommendations of the Police
Commission merely reflect the constitutional concomitants of the fundamental
right to personal liberty and freedom. A person is not liable to arrest merely
on the suspicion of complicity in an offence.
There must be some reasonable justification in the
opinion of the officer effecting the arrest that such arrest is necessary and
justified. Except in heinous offences, an arrest must be avoided if a police
officer issues notice to person to attend the Station House and not to leave
the Station without permission would do.”
100) The registration of FIR under Section 154 of
the Code and arrest of an accused person under Section 41 are
two entirely different things. It is not correct to say that just because FIR
is registered, the accused person can be arrested immediately. It is the
imaginary fear that “merely because FIR has been registered, it would require
arrest of the accused and thereby leading to loss of his reputation” and it
should not be allowed by this Court to hold that registration of FIR is not
mandatory to avoid such inconvenience to some persons. The remedy lies in
strictly enforcing the safeguards available against arbitrary arrests made by
the police and not in allowing the police to avoid mandatory registration of
FIR when the information discloses commission of a cognizable offence.
4.
Bail is the rule and jail is the
exception.
A person is innocent till found guilty.
Suresh kalmadi v. CBI 2012 (1) JCC 734
5.
Delay in trial
Relied upon judgment:
State of Kerala v. Raneef 2011 (1) SCC 784
6.
Because there is a presumption of
innocence in favour of the applicant as held by the Hon’ble Supreme Court in
the matter of Siddharam Satlingappa
Mhetre V. State of Maharashtra and Ors. (2011) 1 SCC 694
7.
Because releasing accused on bail
tantamount merely to change of custody:
It has been
clearly held in the matter of Ishwar
Chand Vs. State of HP 1976 Cr.L.J. 386 that-
“23. It is necessary to examine
the concept of bail in criminal cases. The object of keeping an accused person
in detention during the trial is to secure his appearance for being dealt with
according to law on the charge made against him. The principle underlying his
release on bail is that he is presumed under the law to be innocent until his
guilt is proved. And as a presumably innocent person he is entitled to freedom
and an opportunity to look after his case, provided his attendance is secured
by proper security. On the security being furnished he is released. He is
released from the custody of the officers of the law and entrusted to the
private custody of the persons who
became bound as sureties to produce him to answer according to law to charge at
a specified date or place. The release of the accused on bail tantamount merely
to change of custody. He is delivered into the hands of the sureties and is
considered to be in their custody. Some courts have taken the view that a person released on bail must be considered
to be detained in the constructive custody of the court through his surety”
8.
Because
it was held in Anil Mahajan Vs. Commissioner of Customs that even if the there
is an offence prima facily made out against an accused, then the bail should
not be withheld/denied as a punishment.
Additional
Grounds:
1.
Medical Report:
The medical examination conducted clearly states
in its report that there was “no positive finding of natural or unnatural
sex”
2. Delay in FIR for more than 10 months since the last
incident of alleged offence given
3. No exact time and place of alleged offence
4. Other accused persons are on bail
5. Many cases does not matter
Sidhant verma versus the
state 2016 (1) JCC 553
6. Medical condition of the accused
7. No further recovery is to be made by the
investigating officer
8. There is no apprehension
of the applicant/accused threatning the witnesses, tampering the evidences or
hampering the trial
Judgements which may
be taken into consideration:
1.
BHASKAR LAL SHARMA & ANR V/S MONICA [SC]
2009
[3] JCC 2453 MEANING OF
CRUELTY
2.
ISHWAR SINGH & ANR V/S STATE [DELHI]
2008
[2] JCC 932 CUSTODIAL
INTERROGATION
IS NOT NECESSARY
3.
PRADEEP SHARMA VS STATE OF DELHI
2013[5]
AD DELHI
RECOVERY
OF ARTICLE IS A MATTER OF INVESTIGATION
4.
SHRI PUNEET GUPTA V/S STATE OF DELHI AND ANR
5.
SMT INDU BALA & ORS V/S DELHI ADMINISTRATION & ORS
1991
CRI.L.J. 1774
6.
HARVINDER SINGH V/S THE STATE OF (NCT OF DELHI)
2007
[4] JCC 3164
7.
ASHOK KUMAR GUPTA V/S STATE
141
(2007) DLT 94
8.
SHASHI KAUSHAL V/S STATE 2009 [1] JCC 765
9.
ANIL KUMAR MALIK V/S Delhi ADMINISTRATION, DELHI
1993
JCC 32
10.
CHANDER BHAN AND ANR V/S STATE
20081] DLT 691
11.BUDHAN SINGH &
ORS V/S STATE
2008
[2] JCC 1017
12.
ASHOK VISHNU DAVARE V/S STATE OF MAHARASTRA
2004(4)
CRJ 668
13
COURT ON ITS OWN MOTION V/S CENTRAL BUREAU OF INVESTIGATION
2004
[1] JCC 308 (H.C.)
14
COURT ON ITS OWN MOTION V/S STATE IN THE HIGH COURT AT NEW
DELHI
DATED ON 27.10.2017,
HON’BLE
JUSTICE VIPIN
SANGHI
AND P.S. TEJICRL.REF
NO.
4/2017
SAY
REITERATED BY DB
15.
DATARAM SINGH VS STATE OF UTTAR PRADESH & ANR.
CRI.
APPEAL NO. 227/2018,
IN
THE SUPREME COURT OF INDIA. DATED 06.02.2018
16
KM HEMA MISHRA VS STATE OF U.P. AND OTHERS 2014 CRI.L.J. 1107
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