My brother was apprehending arrest in 498A. His wife roped in my entire family in this case, though other family members were granted Anticipatory Bail by High Court but the same was rejected for my brother. Also, it took 11 months for high court to take a decision on my Brother's ABA as the girl used to file an affidavit in every appearing. We field SLP Cr. in SC for the relief, though the SLP was dismissed but SC order reads "There shall be stay of arrest against the petitioner for a period of four weeks from today (14th December) to enable him to apply for regular bail." . My brother approached Trial Court within 2 weeks for Regular bail but the concerned Magistrate said that it's not an stay on arrest and it's just given to apply for Regular bail and we can arrest you before 4 weeks. Our lawyer argues and said that even if you want to reject the Regular bail you can't arrest my client before 10th January and it's an implicit interpretation of SC's judgement that the protection was given to approach Higher courts in the event of dismissal of Regular Bail. The Magistrate said that either take the girl or go to Jail, my brother told that at any cost he is not going to take the girl back. Our lawyer approached CJM the same day but even he refused to listen to him and asked the Magistrate to take my brother into custody.Our lawyer was taken aback by this and written an application stating the Contempt of SC but Magistrate refused to accept the application. I consulted few people and everyone has their own interpretation of the judgement but most of them said it's a Contempt of Court. Could anyone tell me if it's really a Contempt of Court? If so, how shall we proceed to SC for this? And how much expense we would have to bear for it? Also, can any judge repeatedly ask my brother to take the girl back and failure of which would lead him to jail? Is this what we call justice? And is it a solution to put an innocent person behind the bars (By God's grace my brother has enough strength to bear it) along with Criminal because he didn't succumb to the crooked lady's demand and in return filing the false case on us?
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your brother cannot be forced to take his wife back
2)stay of arrest was only to enable brother to apply for regular bail
3) if your brother regular bail application is rejected he can be taken into custody
4) there is no contempt of court committed by magistrate
Hello,
Has your brother been sent to jail?
Please note that that any willful disobedience of the order of the court will amount to contempt and contempt proceedings can be initiated against the said magistrate. The same will be filed as per the RULES TO REGULATE PROCEEDINGS FOR CONTEMPT TO THE SUPREME COURT, 1975.
The Supreme Court recently in one of the cases has observed that the courts cannot force a husband to "keep his wife".
Hi
Yes this is clear cut contempt of court. File the petition against it.
No Judge can force you to take your wife back and there is no such law that you may be sentenced for refusing to take back your wife.
File in High Court if you are forced for anything by judge at sessions court.
Thank You
Actually, this is why I got confused. Everyone has their own interpretation of this judgement. But majority says it's Contempt. The only thing I am concerned about is the cost we would need to incur in this petition, in case if we file it and the SLP is dismissed, my parents will go more into depression. All of our saving has take a toll as this is going sine 1.5 years from now. @Anilesh, Yes he was sent to jail on 2nd Jan itself. And our lawyer also got into heated argument with the Magistrate that it's willful disobedience of Court. @Rahul : Could you give me any idea how many days it would take to file this petition and for the judgement.
Hello,
It is a clear contempt of court case.
Fee of a lawyer is the expenditure that you will have to make.
A layer will take 3-4 days to prepare and you may get the order in the following week.
Regards
Share the copy of the order of the Supreme Court
Regards
1) you should never antagonise the magistrate
2) litigation is long drawn and expensive proposition
3) i disagree that magistrate has committed contempt of court
4) order stayed arrest for period of 4 weeks to enable you to file regular bail application
5) once regular bail application is decided by magistrate he is at liberty to reject bail application
Dear Friend,
Sometimes, close relationship may over rule you and make you to misinterpret the wordings of Hon'ble Supreme Court. Always the Courts at lower rank receives the orders of Hon'ble Supreme Court and interpret the meaning according to the intention and circumstances under which the said order was passed. In your brother's case the interpretation of lower courts is correct and it does not amount to contempt. The interpretation given by your advocate that is:
"Our lawyer argues and said that even if you want to reject the Regular bail you can't arrest my client before 10th January and it's an implicit interpretation of SC's judgement that the protection was given to approach Higher courts in the event of dismissal of Regular Bail"
The wordings of order of SC never intended to stay the arrest or extended its order till your approach to higher courts in the event of dismissal of regular bail.
It is obviously very clear that no charge sheet is filed against your brother till today and your brother wish to take anticipatory bail as a shield towards arrest.
In fact there is no necessity of arresting your brother in an offence under section 498A IPC. There is nothing to recover from your brother by the police during custodial arrest. What police wish to have is either an explanation to the allegations made by his wife in her complaint or counter statement by your brother. In either case the concerned investigation officer may complete his work within 2 to 3 hours and then produce before the Magistrate for judicial custody. Even judicial custody is not necessary since IO has finished his work having recorded the statement of your brother. In criminal cases the statement of accused will not produced by the police and it is will kept off the records. Thus in this background i am of the view that you can manage by yourselves to get release by way of surrender before the concerned police and with a request to file a memo before the court that your brother is no more required for further investigation. In such cases the Magistrate with some usual conditions grant bail to your brother since all other accused are on bail. Arguing legal points may leads to interpretation of arrogance of your advocate when the order of the SC is very plain and clear. In this background please ask your advocate to win over the sentiments of concerned Magistrate and police so that your brother will be immediately released on bail.
If the 4 weeks time is given for approaching the trial court for regular bail then you are protected till 4 weeks till you approach the lower court. But if orders expressly states that not to arrest till 4 weeks then even after the rejection of the order he cannot be arrested till the time granted by SC. In this case if you approached the court before 4 weeks and the matter was decided before 4 weeks and the order of SC states time of 4 weeks is only for approaching trial court and seeking bail then he can be arrested if bail is rejected by trial court. The magistrate has to accept applications on record and pass orders he can't refuse to take application on record. He may reject the same after taking on record but can't refuse to take the same on record.
I reiterate that if the order of SC is clear about not to arrest for 4 weeks then magistrate has done illegal act by doing so.
The magistrate conduct is illegal here by compelling and directing your client to take the girl back or face jail. You can take action against the said judge for the same. The expenses of SC court depends on the lawyer you hire for the same.
1. Well, I did not find any contempt in the order of Magistrate.
2. Stay on arrest for 4 weeks was there to restrain the Police from arresting your brother so he can apply for regular bail.
3.In the regular bail application the Magistrate can either allow his bail petition or reject it. Stay on arrest does not mena once he applies for bail he will have be granted with bail by the Magistrate in all circumstances.
4. As it appears your brother has already got bail and if that is so then close this chapter and move on.
This is not contempt of Court.
4 weeks were given by the Supreme Court to enable your brother to file a regular bail. In case he applied for regular bail in the very 1st week and the same got rejected, the protection granted by the Supreme Court comes to an end at this point; though 3 weeks out of a total of 4 were still left.
The Court was right in taking your brother into custody.
The protection(of 4 weeks) granted by the Supreme Court was to remain into operation only till the time the regular bail was applied and a decision was taken thereon. Immediately with the passing of an order in this regular bail, this supreme court protection was too end. 4th week was the outer-limit within which your brother was to apply for regular bail.
There shall be stay of arrest against the petitioner for a period of four weeks from today (14th December) to enable him to apply for regular bail." . This is normally granted when an application for AB is heard and disposed off. It implies that the petitioner shall not be arrested and he will be released on a personal bond and will have to approach the magistrate for regular bail.
if it's really a Contempt of Court? If so, how shall we proceed to SC for this? The magistrate has acted without application of mind and therefore liable to face contempt charges. However, this matter can be taken up to chief justice of karnataka and thereupon to CJI. Even a personal letter will help.
Also, can any judge repeatedly ask my brother to take the girl back and failure of which would lead him to jail? Absolutely nonsense and he acted in violation of the powers conferred on him.
Get the bail application and the order, write to CJK and CJI.
1. The Supreme Court had stayed the arrest for 4 weeks to enable your brother to apply for the regular bail. However, once the regular bail was applied within 4 weeks and dismissed then your brother could not claim protection from arrest on account of the fact that he is still within the 4 weeks period given to him by the SC. The protection from arrest for 4 weeks was granted to enable him to apply for regular bail, which implies to file an application in the original court for regular bail. On the dismissal of the application for grant of regular bail your brother could move the higher courts for bail but then he could not seek shelter under the SC judgment as the order of interim protection passed by the SC was dissolved by an order passed by the magistrate on merits. So it is not contempt of court.
2. The courts can surely ask the husband to take back the wife, albeit they cannot force him.
This may not be come under contempt of court because regular bail can be granted only after the accused is taken into judicial custody.
Anticipatory bail can be obtained even before getting arrested.
The judge cannot force you to take the girl for grant of bail, the court has to proceed in this case as per law and cannot impose their own ruling.
As a matter of fact, if the supreme court is correctly read, then the police cannot arrest you for next four weeks.
The trial court cannot order arrest, it is not their duty, they can proceed as per the case before them.
Now since your brother has been remanded and is inside jail, you have to file an application for regular bail, if the trial court is bent upon dismissing the bail application, you may not get justice even in the sessions court, hence better approach directly to the high court seeking grant of regular bail.
Dont go for SLP once again because it may be too expensive and it may not fetch any fruit or desired result, it will again turn out to be futile exercise.
This is my opinion, you may decide what can be done after discussing with our own lawyer in the local on all such further issues.
As per your version regarding the SC order, it is a contempt of the court. You have to approach the SC again in this regard.
