• 498a anticipatory bail disposed off

Hi I am an NRI, my wife filed an a totally false FIR of 498a and 406 on me and my father. Police were reluctant to file an FIR first because they knew it was false complaint but they had to file an FIR of 498a, 406 and DP 3/4 because of political pressure generated by my wife and her parents.

Due to this my father had to move to sessions court for anticipatory bail, but it got rejected because police wrote in FIR that my father never came for investigation or attended mediation meeting, police were completely lying, my father went on 2nd July,2021 and met IO and cooperated investigation and answered all their queries. IO then told my father we will call you for mediation next time and noted down answers of my father on blank paper. Because my wife side brought political pressure on IO, they had to file FIR because of no reason and lie in FIR my father didn't came to meet them. IO lied in front of sessions court judge and said my father never came to visit them, which gave the perception to sessions judge that my father is not cooperating and rejected bail plea.

We were having no proof that my father joined investigation, but by god grace my father mobile location was live on 2nd July. So we changed lawyer and applied bail plea in high court along with location data and mentioned pressure from complainant side. Our new lawyer contacted IO on phone, she accepted she had to lie in court to stand on FIR, otherwise she will be under threat of losing job.

High Court now have disposed off the bail application and mentioned entire arnesh kumar judgement for direction to police. High court literally explained Sec 41 and 41a provision to police officials and gave them a direction to IO to follow them. 

High court mentioned below 2 directions to IO and asked government lawyer to gave certified copies to concerned police station. 
1) Police can resort to extreme step of arrest only when they have reasons in writing complying sec 41 and 41a and only when the applicant fails to cooperate in the investigation.
2) IO should first summon the applicant to join the investigation, if the applicant cooperates in the investigation then the occasion of his arrest should never arise.

The anticipatory bail plea stands disposed off with above directions to police officials.

My query is that the above court order was read by our lawyer and also I contacted another lawyer, both said above order is not less than bail approval plea, it is not exactly bail but it is equal to bail. So can the police officials through some hook or crook show reason to arrest, my father is not scared at all to cooperate in investigation because entire FIR is malicious and falsified only concern is if again some political pressure then what. Our lawyer said that my father just join investigation and collect evidence of his presence, its very hard for police to disobey high court order even under political pressure. There is no other terms and conditions in court order.
Asked 5 months ago in Family Law
Religion: Hindu

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9 Answers

Your lawyer is correct 

 

Police would issue notice then police has to appear before OO have his statement recorded 

 

Police cannot ignore HC orders otherwise it would be contempt of court 

 

your father would not be arrested 

Ajay Sethi
Advocate, Mumbai
87212 Answers
6048 Consultations

5.0 on 5.0

If your father cooperated with investigations and appears before police for recording his statement he would not be arrested 

 

as per HC order your father can be arrested if he does not cooperate with investigations 

 

it is S good as bail 

Ajay Sethi
Advocate, Mumbai
87212 Answers
6048 Consultations

5.0 on 5.0

It is clear from the orders of the high court that the anticipatory bail application has been dismissed by the high court but with instructions to police to taken steps to issue notice to the accused under section 41A Cr.P.C.

This is not a restriction order to restrict the police from going ahead with the arrest after the investigation or preliminary inquiry has been concluded. However no arrest can be made  in  a  routine  manner  on  a  mere allegation of commission of an offence made against a person.

The existence of the power to  arrest  is one thing, the justification for the exercise of it is quite another..

If the police is acting at the behest of some political pressure then they can manipulate the issued in order to save their skin by justifying their actions mentioning that the  following  conditions  are  satisfied, namely:

the police officer is satisfied that such arrest is necessary – to prevent such person from committing any further offence; or  for proper investigation of the offence; or to prevent  such  person  from  causing  the  evidence  of  the  offence  to disappear or tampering with such evidence in any manner; or

to prevent such person from making 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 the police officer; or as unless such person is  arrested,  his  presence  in  the  Court  whenever required cannot be ensured, and the police officer shall record while making such  arrest,  his  reasons in writing:

Provided that a police officer shall, in all cases where  the  arrest  of  a person is not required under the provisions of this sub-section, record  the reasons in writing for not making the arrest.

If the arrest effected  by  the police officer does not satisfy the requirements of Section 41 of the  Code, Magistrate is duty bound not to authorise his further detention and  release the accused.  In other  words,  when  an  accused  is  produced  before  the Magistrate,  the police officer effecting the arrest is required to  furnish to the Magistrate, the facts, reasons and its  conclusions  for  arrest  and the Magistrate in turn is to  be  satisfied  that  condition  precedent  for arrest under Section 41 Cr.PC has been satisfied and it is  only  thereafter that he will authorise the detention of an accused.

Thus it is always necessary to be cautious over this issue despite an order from high court is in your favor.

T Kalaiselvan
Advocate, Vellore
77366 Answers
1458 Consultations

5.0 on 5.0

Another provision of the referred section states that :

 Section  41A  Cr.PC  aimed  to  avoid unnecessary arrest or threat of arrest looming large on accused requires  to be vitalised.   Section 41A  as  inserted  by  Section  6  of  the  Code  of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which  is  relevant in the context reads as follows:

“41A. Notice of appearance before police  officer.-(1)  The  police  officer shall, in all cases where the arrest of a person is not required  under  the provisions of sub-section (1) of Section 41, issue a  notice  directing  the person against whom a  reasonable  complaint  has  been  made,  or  credible information has been received, or a reasonable suspicion exists that he  has committed a cognizable offence, to appear before him or at such other  place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall  be  the  duty  of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the  notice,  he shall not be arrested in respect of the offence referred to  in  the  notice unless, for reasons to be recorded, the police officer  is  of  the  opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the  terms  of  the notice or is unwilling to identify himself, the police officer may,  subject to such orders as may have been passed by a competent Court in this  behalf, arrest him for the offence mentioned in the notice.”

            Aforesaid provision makes it clear that in all cases  where  the arrest of a person is not required under Section 41(1),  Cr.PC,  the  police officer is required to issue notice directing the accused to  appear  before him at a specified place and time.  Law obliges such an  accused  to  appear before the police officer and it further mandates that if  such  an  accused complies with the terms of notice he  shall  not  be  arrested,  unless  for reasons to be recorded, the police office is of the opinion that the  arrest is necessary.  At this stage also, the condition  precedent  for  arrest  as envisaged under Section 41 Cr.PC has to be complied and shall be subject  to the same scrutiny by the Magistrate as aforesaid.

 

Thus based on the above provisions of law, your lawyer's opinion seems to be correct hence you may sigh a relief. 

T Kalaiselvan
Advocate, Vellore
77366 Answers
1458 Consultations

5.0 on 5.0

No generally ABA continues till end of trial but some courts wants you to file a regular bail during filing of chargesheet

Prashant Nayak
Advocate, Mumbai
26719 Answers
79 Consultations

4.4 on 5.0

Hi 

In general, pursuant to Arnesh Kumar judgment, Police are expected to issue 41A notice and the said notice will contain conditions (to attend p.s, not to influence witness, not to leave station without informing PS etc). So, technically, if your father follows all the conditions of 41A Cr.p.c Police cannot arrest your father. 

So, to answer your questions the court has not granted bail to your father.

Also issue of 41 A notice means that technically it is a station bail granted by P.S  (i.e without sureties, but on a personal undertaking by the accused to comply with the conditions of 41a Cr.p.c) 

So,

1)whenever your father goes to police station, he can enter his name in visitor register and also obtain acknowledgment that he had visited the P.S on the said date. 

2) Also, if your father produces any documents to P.S, he can also get acknowledgement for the same. 

3) Unless there is a threat of arrest, your police need not apply for bail. If you apprehend arrest, the best course would be to surrender before the Magistrate and obtain bail immediately on same date. But you should have a good lawyer to do this. 

Hope this information is useful..

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

- "In event of arrest, applicant should be released with XX amount bond and xxxxxxx",means that your father has granted anticipatory bail from the High Court , hence no need of worry , and the police cannot arrest in this case. 

- Further , this order can be continued till the completion of trial , however after appearing before the tral court he can produce the surety on his behalf. 

- The police having no power to misuse the direction of the High court , and if she is threatening then your father can file a contempt petition before the High court. 

Mohammed Shahzad
Advocate, Delhi
9473 Answers
107 Consultations

5.0 on 5.0

1. Your father shall have to obtain anticipatory bail and not some thing which is equal to bail.

 

2. File an application before the lower court now citing the High Court order praying for anticipatory bail first and thereafter he can continue attending the investigation process.

 

3. Talk to your lawyer in this regard.

Krishna Kishore Ganguly
Advocate, Kolkata
26470 Answers
726 Consultations

5.0 on 5.0

1.The order your father has received from High Court is neither bail order nor equal to bail order.

 

2. The High Court has directed the I.O. to follow the provisions of law specially section 41 & 41a of Cr.P.C. which the I.O. is bound to follow even with out the said direction.

 

3. Since the I.O. is under political pressure, she can show that she has issued notice under section 41 but your father has refused to appear before her for investigation and thereafter initiate his arrest.

 

4.    Your lawyer should have pressed for your father's AB since FIR u/s498a of IPC has already been registered against the accused including him.

 

5. Apply for the AB afresh as advised in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
26470 Answers
726 Consultations

5.0 on 5.0

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