Once the Fir U/s. 498a/406 is registered it is better option to take anticipatory bail in the offences as read in the FIR. I have already discussed the chances of anticipatory bail U/s. 498a and 406 in my previous article of chances of getting anticipatory bail in 498a But when you move for anticipatory bail in the court the court may impose certain conditions like depositing a demand draft of certain amount in the name of wife and the complainant as a part of maintenance. Now these conditions such are ultravires to the provisions of section 125 CrPC and these type of orders can be challenged in higher courts. When a specific provision is there for maintenance of wife and child such conditional anticipatory bail in 498a is against the law.

Supportive Judgments

1. In Narinder Kaur V/s State(NCT of Delhi) 2007(141)DLT 761

Complainant father in law released on anticipatory bail and petitioner, mother in law granted bail on condition of depositing Rs. 50000 by way of demand draft in the name of complainant complainant husband already paid Rs. in addition to deposit of Rs.1.25 lakh and she is disinterested in receiving Rs, 50000/- Both parties earning well and in dispute in ither fora condition of petitioner to pay complainant Rs. 50000/- set aside.

2.  Munish Bhasin Vs. State 2009(2) RCR (Crl) 247

Provisions of 438 discussed

From the perusal of the provisions of sub-section (2) of section 438, it is evident that when the High Court or the Court of Session makes a direction under sub- section (1) to release an accused alleged to have committed non-bailable offence, the Court may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including (i) a condition that a person shall make himself available for interrogation by police officer as 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 and (iv) such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. Sub-section (3) of Section 437, inter alia, provides that 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 shall impose the following conditions-

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such 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 or tamper with the evidence.

The Court may also impose, in the interests of justice, such other conditions as it considers necessary.

Conditions which can be imposed

It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438of the Code. However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and sub- section (3) of Section 437 of the Code. Normally, conditions can be imposed

(i) to secure the presence of the accused before the investigating officer or before the Court,

(ii) to prevent him from fleeing the course of justice,

(iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or

(iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code.

While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code. In the instant case, the question before the Court was whether having regard to the averments made by Ms. Renuka in her complaint, the appellant and his parents were entitled to bail under section 438 of the Code.

When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/- for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. The case of the appellant is that his wife Renuka is employed and receiving a handsome salary and therefore is not entitled to maintenance. Normally, the question of grant of maintenance should be left to be decided by the competent Court in an appropriate proceedings where the parties can adduce evidence in support of their respective case, after which liability of husband to pay maintenance could be determined and appropriate order would be passed directing the husband to pay amount of maintenance to his wife. The record of the instant case indicates that the wife of the appellant has already approached appropriate Court for grant of maintenance and therefore the High Court should have refrained from granting maintenance to the wife and child of the appellant while exercising powers under section 438of the Code.

The condition imposed by the High court directing the appellant to pay a sum of Rs.12,500/- per month as maintenance to his wife and child is onerous, unwarranted and is liable to be set aside.

The Hon’ble supreme court in recent judgement set aside condition of deposit of Rs. 500000/- compensation to wife as part of condition to bail in case of by supreme court.

By Adv. Nitish Banka

Practicing Advocate at Supreme court of India

[email protected]

The case of Sudeep Chaterjee v State of Bihar is a landmark case which referred to the issue of bail conditions in matrimonial issues. These issues are often about safety concerns, harassment or property disputes when of the spouses is facing criminal charges. The court imposes bail conditions to make sure that both parties involved suffer no injury, also preventing further conflict. The said conditions can include restriction on communication, physical contact, mandatory counselling in cases where either side might have anger issues and restraining orders in some cases. Moreover these conditions also involve freezing assets of the respondents if petitioner proves that there is flight risk. These measures taken by the court are not to punish anyone but to ensure that all the issues on hand are dealt with fairly. The abovementioned case revolves around how and when anticipatory bail can be sought and granted if there is no prima facie evidence showing accused’s presence and involvement in the “alleged” crime.

In this case the High Court had passed the judgement where the accused was granted a provisional bail, in other terms, anticipatory bail subject to him (the respondent/ husband) fulfilling all financial and physical needs of the complainant (the wife). The question that arises out of the conditions imposed on the husband for getting bail is procedural fairness; undermining and breaching the fair trial rights. The Apex Court in the judgement lays emphasis on the fundamental principles of bail, specifying the presumption of innocence. The court articulated that though there is a need for imposing conditions, the said conditions have to be proportionate and reasonable.

The Court strongly criticized the practice of setting unreasonable and impractical bail conditions subjecting the person to excessive procedural and financial complications. The importance of protection of human dignity has been magnified in the judgement. It has been argued that such impossible situation imposes too much pressure on the accused and undermines these rights. Reconciliation in matrimonial issues excluding such hurdles is a difficult task which gets pushed to becoming nearly impossible due to these situations created by bail conditions. Conciliation and Peace making should be the main concern of these proceedings and not retribution. This case has profound effects on the criminal justice administration and sets clear precedent for Courts to follow caution while imposing bail conditions, considering and giving the accused’s rights equal importance. It lays down foundation for a more balanced approach for bail matters by curbing arbitrary and oppressive bail conditions. 

Nitish Banka

Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997