Domestic violence act so called as DV  Act was brought into picture for protection of women from the cruel act of her husband and her in-laws. Women are most of the time considered as weak and are brought up with a phycology that the could be suppressed very easily by her husband and her in-laws.

 According to this act the women can go and complain about her in law and immediate action will be taken against the person who is committing the wrongful act. This act was made for the benefit of the women but it is very sad to see the difference between the real picture and the statistical data.

There are two situations in which it could be very clearly seen that there is a vast difference between real picture and the statistical data-

1. When the women misuse the DV Act
2. When she quietly bears the wrong doing of the husband or in-laws without registering the complaint against them.

Let’s discuss the two scenarios in depth-

Lets consider the first situation.

The statistical data of the cases registered are very shocking and heart shaking. The data shows how the husband and in-laws have committed have committed wrong on the in-laws but in reality the women has misused the DV Act to take revenge either from in-laws or husband or both or with the view of seeking heavy monetary compensation.      

So, the numbers which the statistics show are quit high than actual cases. Most of the times it becomes difficult for the Investigating officer to find the truth.

Lets now consider the second situation,

According to the percentages most of the women in India are still illiterate she has been taught by her parents and society that husband and in-laws are figure of god and you should bear what ever they do or say never reply back. With this mindset the women either for dowry or any other demand are beaten, Harassed by the husband and in laws but she never open her mouth to seek justice.

Hence, we should not rely on the statics to show the reality because statics can be misleading and show the wrong picture, either it shows a bigger picture or a smaller picture but never a reality.

I am not understanding what to do?…. My Senior is not paying me well even if I am working very hard…whether I should go for litigation of corporate?… should I go for joining a law firm or should I go for independent practice?….mooting…will it help me? should I write research paper or should I work on moot court? My marks are not good will I be able get a good job? and blah…blah…blah….these are some common questions which comes in the mind of a law student once while he is in the law school or these problems come before him/her every day while he is in law school . These thoughts keep on disturbing a law student throughout his law school until he lands up to a hefty paying job or a valued client(if he wants to make his fortune into litigation). Not just your but also your family’s entire life will be based on what yo chose at this point of time…..

this blog is under development……..the entire blog will be published soon…

 

Section 438 of the Criminal Procedure Code lays down a provision for a person to seek ‘Anticipatory Bail’. An individual can request to get bail in anticipation when he expects of being named as accused or is accused of  committing a non-bailable offence. 

It is  safeguard for a person who has false accusation or charges made against him/her, most commonly due to enmity, as it ensures the release of the falsely accused person even before he/she is arrested. One must approach the Sessions Court or the High Court under section 438 of the Criminal Procedure Code and also giving proper reasons for it. If the honourable court, sees merit in the petition the bail is granted based on the conditions and the nature of the case. Hence if and when the person is arrested, he/she will be immediately released on the basis of the anticipatory bail.

On the first day of hearing of the Anticipatory bail application (ABA), if the honourable court is convinced , the honourable court grants Interim bail till the final order is given on ABA.

In today’s discussion I will be only focusing on the aspect of ABA with respect to a accusation of a person under section 420 of the India Penal Code.

Section 420 of IPC is defined as “Section 420 of The Indian Penal Court talks about the offence which is committed by the person who cheats another person and thereby induces the deceived to deliver any property. This provision provides punishment for the same.“

Offence committed under Section 420 of IPC is a non- bailable offence therefore ABA can be granted. This was held in the case of VAMAN NARAIN GHIYA V. STATE OF RAJASTHAN where the hon’ble supreme court has held- “balance to be maintained between the personal liberty of the accused and the investigation right of the police an accused is not detained in custody with the object of punishing him on the assumption of his guilt thus can opt anticipatory bail. Offence under 420 IPC are non bailable offence due to which it is possible to apply for anticipatory bail under section 438 CrPC“. Anticipatory bail application has been brought into the picture to safe guard the individual liberty as guaranteed under Article 21 of the constitution.

the honourable Court applies its mind to the facts and circumstances of the case. The Court is required to exercise its discretion upon examination of the facts and circumstances and to grant anticipatory bail “if it thinks fit”.

The aforesaid expression has been explained by this Court in Gurbaksh Singh Sibbia and others vs. State of Punjab, (1980) 2 SCC 565 as follows:

“Circumstances may broadly justify the grant of bail in when a person is charged under section 420 of IPC , though of course, the court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.

The salutary provision contained in Section 438 Cr.P.C. was introduced to enable the Court to prevent the deprivation of personal liberty”.

 Some more observations made by this Court in the case of Gurbaksh Singh Sibbia and others vs. State of Punjab, (1980) 2 SCC 565 :

” since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over- generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The  beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi vs Union of India , that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.”

 The recommendations were considered by this Court in a Constitution Bench decision in the case of Gurbaksh Singh Sibbia and others vs. State of Punjab, (1980) 2 SCC 565. Upon consideration of the entire issue this Court laid down certain salutary principles to be followed in exercise of the power under Section 438 Cr.P.C. by the Sessions Court and the High Court. It is clearly held that the anticipatory bail can be granted at any time so long as the applicant has not been arrested. When the application is made to the High Court or Court of Sessions it must apply its own mind on the question and decide when the case is made out for granting such relief. There is also no reason to deny anticipatory bail merely because the allegation in this case pertains to cheating or forgery of a valuable security. The merits of these issues shall have to be assessed at the time of the trial of the accused persons and denial of anticipatory bail only on the ground that the challan has been presented would not satisfy the requirements of Sections 437 and 438 Cr.P.C.

Conditions that are taken into consideration by the court when granting anticipatory bail include, but are not limited to:

1)The person will make him/herself available for interrogation by the police as and when required by them

2)The individual shall not directly or indirectly  make any threat, promise or offer any bribe to any person who is connected to the case or knows facts about the case, so as to keep them quiet or to get them to change their report of facts to the court or the police

3)An assurance that the person shall not leave India without prior permission from the court.

Therefore, anticipatory bail application is granted to a person who accepts the above conditions. riority