Regular Bail

Regular Bail

by | Dec 9, 2020 | General

Every citizen has a fundamental right to freedom guaranteed under Article 21 of the Constitution, which states that no person shall be deprived of his life or personal liberty except according to procedure established by law. Under the Indian criminal jurisprudence, the concept of Regular Bail rises up of the contention between the ‘police control’ and to limit the freedom of a man who is affirmed to have committed an unlawful act.
                                                                            “Bail is a rule, Jail is an exception.”

                                                                                                                                                                         -Justice V. R. Krishna Iyer

What does mean by the term ‘Regular Bail’?

The origin of term ‘Bail’ is from an old French verb ‘Baillier’ which means ‘to give or convey’.The question of filing the Regular Bail arises when the person accused got apprehended by the police authorities. It is a temporary release of the accused either with or without surety with the promise to appear in court when required. It applies certain restrictions on a suspect to ensure that they comply with the judicial process.

Which court has the jurisdiction to grant Regular Bail?

Section 436 and 437 of Code of Criminal Procedure empowers a Court and an officer-in-charge of the police station to grant regular Bail to the person accused that has been arrested or suspected in the commission of an offence.Also, High Court or Court of Session can grant regular Bail to any person accused of an offence and in custody under section 439 of Code of Criminal Procedure.

What are the considerations to be taken by the Court?

The factors which the Court has to consider before granting regular bail, though not exhaustively-

  1. The nature of accusation and the severity of punishment in case of conviction.
  2. The possibility of the accused fleeing from justice.
  3. The possibility of tampering with the evidence or the witnesses.
  4. The possibility of obstructing the course of justice or attempting to do so.
  5. The possibility of repetition of the offence.
  6. The peculiar facts of each case and nature of supporting evidence.
  7. The prima facie satisfaction of the Court in support of the charge.
  8. Character behavior and standing of the Accused and the circumstances which are peculiar to the Accused.
  9. Larger interest of the public or the State.

Under what provisions Regular Bail can be granted?

  1. In case of Bailable Offences:

If the person accused of any Bailable offence then he/she is entitled for Regular Bail as a matter of right under Section 436 of Code of Criminal Procedure, 1973. In Bailable offences bail is a right and not a favor. In such offences there is no question of any discretion in granting bail.

  1. In case of Non-Bailable Offences:

If the person accused of any non-bailable offences then he/she does not have the right to apply for regular bail as laid down under Section 437 of Code of Criminal Procedure, 1973. It is the discretion of the court to grant regular bail in case of non-bailable offences. However, there are two exceptions in which case regular bail can be refused-

  1. If there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.
  2. If such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- Bailable and cognizable offence.

The section further provides that the Court can grant regular bail to person accused who comes under above sub-sec (a) & (b) if such person is under the age of sixteen years or is a woman or is a sick or infirm or if the Court is satisfied that it is just and proper so to do for any other special reason.

What are the grounds for cancellation of Regular Bail?

The regular bail granted can be cancelled or dismissed under section 437(5) and 439(2) of Code of Criminal Procedure. The Court also has power to cancel the bail even at a later stage. However, the following grounds for cancellation of regular bail are illustrative and not exhaustive. The following are the grounds where the regular bail of the person accused can be cancelled where he-

  1. Misuses his liberty by indulging in similar criminal activity.
  2. Interferes with the course of investigation.
  3. Attempts to tamper with evidence of witnesses.
  4. Threatens witnesses or indulges in similar activities which would hamper smooth investigation.
  5. Attempts to flee to another country.
  6. Attempts to make himself scarce by going underground or becoming unavailable to the investigating agency.
  7. Attempts to place himself beyond the reach of his surety, etc.

Conclusion:

The personal liberty is of utmost importance in our constitutional system. There is a strong need for a complete review of the bail system keeping in mind the socio-economic condition of the majority of our population. It would be unjust and unfair to deprive the alleged accused of his/her liberty during the pendency of the criminal proceeding without considering the facts and circumstances of the case.While granting regular bail the court should consider the socio-economic plight of the accused and also have some compassionate attitude towards them.It is the duty of the Court to decide the regular bail applications at the earliest with a written reasoned order, based on the bona fides of the applicant in light of prevailing facts and circumstances.

–Shrinkhla

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali

Anticipatory Bail

Anticipatory Bail

by | Dec 7, 2020 | General

“It is better that ten guilty persons escape than that one innocent suffer”

–Jurist William Blackstone

The provision of Anticipatory bail is provided under the Criminal laws in India. To understand the concept of Anticipatory Bail, we may first try to understand the concept of Bail.

What does mean by the term Bail?

Bail means temporary release of the accused from the custody of police either with or without surety with the promise to appear in court when required. It is a set of pre-trial restrictions that are imposed on a suspect to ensure that they comply with the judicial process. Bail is of two types:

  1. Regular Bail under section 437 of the Code of Criminal Procedure.
  2. Anticipatory Bail under Section 438 of the Code of Criminal Procedure.

What is Anticipatory Bail?

The term “Anticipatory Bail” is not defined under the Criminal Procedure Code, 1973. However, According to the Section 438 of Cr.P.C when a person has apprehension or reasonable belief that he may get arrested for a non- bailable offense then he may apply to session court or the high court to get a direction for anticipatory bail. Anticipatory bail means grant of bail to a free person in anticipation of his possible arrest for some offence and in the absence of any order of arrest against him.Grant of anticipatory bail presupposes that the person is in custody of police or court and if not in custody, is required to surrender to such custody.

Evolution of Anticipatory Bail:

The origin of bail dates back to medieval times, when the first known drafted constitution came to be enacted in the year 1215 by King John of England which was referred as “Magna Carta”. The genesis of the bail can be extracted from the clause 39 of Magna Carta which reads as “No free man shall be seized or imprisoned or stripped of his rights or possessions or outlawed or exiled or deprived of his standing in any other way, nor will we proceed with force against him or send others to do except by the lawful judgment of his equals or by the law of the land.” From the perusal of this clause it can be understood that a person shall not be restricted or confined unless and until there is a final judgment in accordance with the laws of land. On a careful reading and decoding of this clause we can greatly relate the said provision with the provisions of bail as provided in Code of Criminal Procedure (Cr.P.C). The old Code of Criminal Procedure of 1898 did not have provisions for anticipatory bail. The idea of anticipatory bail was first recommended to the parliament only under the 41st Law Commission report, after that the provision of anticipatory bail was incorporated under Section 438 of Chapter 33 of the new Cr.P.C 1973.

Object of Anticipatory Bail:

Right to life and personal liberty is an important right granted to all the citizens by the Constitution of India. The legislative history of the provision reveals that the Joint Select Committee of Parliament had initiated a thought that bail should be made available in anticipation of arrest so that liberty of an individual may not be unnecessarily jeopardized. It then asked the Law Commission of India to take into consideration this matter and there after the Section 438 have been added as a result of its report. No person should be confined in any way until and unless held guilty as it is in conflict with the very nature of Right to life and personal liberty.It also secure the presence of the accused person in the court during a trial or whenever required by the law without unreasonably and unjustifiably interfering with his liberty.

Which court can grant Anticipatory Bail?

The High Courts and Sessions Court are empowered to grant anticipatory bail in the event of arrest. Generally, the applicant has to first approach the Session Court for moving an application for anticipatory bail unless special circumstances exist for filing the same in the High Court. The Applicant has to approach the Courts within whose jurisdiction he apprehends his arrest. It is irrelevant that the alleged offence has been committed outside the jurisdiction of such courts. If the courts do not have the required territorial jurisdiction, they may still grant anticipatory bail for a short term with adequate safeguards for approaching the court having jurisdiction to entertain such application.

Under what circumstances Anticipatory Bail can be granted?

Anticipatory Bail is granted only in exceptional cases where it appears to the court that the person seeking anticipatory bail is being framed in the charge. Such as-

  1. Where an exceptional case is made out which indicates that there are adequate reasons to believe that the applicant may be arrested on baseless grounds.
  2. Where the court believes that accusations have been made with unscrupulous motive or with intention to cause injury to the applicant.
  3. Where the Court believes that the allegations which are made against the applicant are vague, indeterminate, unsettled or general in nature.
  4. Where the applicant has reasonable ground to make the court believe or satisfy that he hails from a reputable family, have deep roots in the society and is not likely to abscond or escape the process of the court.
  5. Where the applicant is an influential person in respect to the accused and a case has been filed to satisfy political rivalry.

What are the conditions?

While granting anticipatory bail, the Court can impose some conditions which are laid down under sub-section 2 of Section 438 CrP.C.-

  1. The person shall make himself available for interrogation by a police officer as and when required.
  2. 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.
  3. The person shall not leave India without the previous permission of the Court.
  4. Such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.

Duration of Anticipatory Bail:

A five-judge Constitution Bench headed by Justice Arun Mishra observed in the case of SushilaAggarwal v/s State of NCT of Delhi (2020)that the protection granted to a person under Section 438 of Cr.P.C should not invariably be limited to a fixed period; it should inure in favor of the accused without any restriction on time. The Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc. The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

Is Anticipatory Bail can be cancelled?

There is no specific provision regarding the cancellation of anticipatory bail. However, the court which has the power to grant the anticipatory bail is also empowered to cancel the bail. This power can be invoked under special or exceptional cases only when court is satisfied that the ends of justice will be defeated unless the accused is committed to custody because anticipatory bail is a special privilege given to a person and should not be abused in any manner. 

Conclusion:

Anticipatory Bail was introduced in the Code to prevent violation of personal liberty of a person. However, the Hon’ble Supreme Court of India has emphasized again and again through a catena of judgments that utmost care should be exercised by the Courts while granting the anticipatory bail so as to prevent the abuse of this special privilege. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely.

                                                                                                       -Shrinkhla

                                                                       Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali

File Divorce with the help of Divorce Attorney in Chandigarh

File Divorce with the help of Divorce Attorney in Chandigarh

by | Dec 7, 2020 | Divorce Lawyer

Going through divorce proceedings is a stressful event as there are many factors that may be related to the divorce proceedings such as child custody, maintenance, and other related issues to marriage.

These factors may create chaos in a person’s life and it is always recommended to hire a Divorce Attorney to get out of this situation. Finding a Divorce Attorney in Chandigarh who will analyze your situation and give proper guidance throughout litigation is not an easy task for laymen. Aggarwals & Associates is one of the top Divorce Attorney in Chandigarh can get you out of this complex situation of divorce proceedings. 

Where to turn?

Once you decided to take divorce from your partner or your partner initiated the same process against you, you may be overwhelmed with all happenings and unsure of where to turn. It also came into mind that how to achieve the possible outcome in court. The answer to this query is that you just need someone on your side during this tough time. And this someone is a divorce attorney who can protect your best interest in the court. Hiring the best Divorce Attorney in Chandigarh like Aggarwals & Associates can be a savior for you in complex matrimonial litigation. It is important for a person facing matrimonial litigation such as mutual/contested divorce, child custody, alimony, and maintenance, etc. to take the assistance of the right divorce attorney so that possible outcomes can be achieved in the court. 

Why you need a divorce attorney?

A divorce attorney can answer your all queries related to legally ending your marriage. With the help of a divorce attorney, you can reduce your anxiety and go through the divorce process faster and hassle-free. You may need a divorce attorney if you are going through the below-enumerated situations:- 

  1. You want legal separation from your partner.
  2. You want to know other available legal remedies instead of divorce. 
  3. You received divorce papers from your partner.
  4. Your spouse has a divorce attorney.
  5. You believe that your partner is spending or hiding joint property for divorce. 

What kind of cases dealt with by Aggarwals & Associates Divorce Attorney in Chandigarh?

We Aggarwals & Associates believe in expanding our services according to the needs of prospective clients. The firm prefers to take a proactive approach to matrimonial and divorce matters for its clients and is committed to responsible dealings. Our team of best Divorce Attorneys in Chandigarh helps clients in diverse marriage issues such as:-

  • Filing and defending mutual consent/contested divorce. 
  • Alimony
  • Interim maintenance
  • Maintenance under Section 125 of Cr. P.C.
  • Child custody
  • Filing and drafting of complaints under the Domestic Violence Act
  • Dowry harassment cases under Section 498-A of IPC
  • Women cell complaints 
  • NRI issues related to marriage
  • Judicial separation 
  • Restitution of conjugal rights 
  • Annulment of marriage  
  • Transfer petitions 
  • Counseling and mediation 

Why people hire us as Divorce Attorney?

Professionalism and impressive reputation:

We offer a unique blend of youth and experience obligated to professional ethics and code of conduct. Our sharp and intellectual team of lawyers keeps the impressive reputation of our firm up by delivering positive outcomes in litigation. 

Transparent dealing:

Our rational approach makes us obligated for transparent dealing with the clients. Our strict adherence to the culture deck and code of conduct makes us different from others. 

Problem-solving attitude: 

The unfettered problem-solving attitude of our team of Divorce Attorneys in Chandigarh leaves no ground for clients for disappointment. We use distinctive strategies in every case so that needs of clients may be fulfilled. 

Honest and fair representation:

We believe in guiding the clients with honest advice instead of making false promises. With our virtuous attitude, we are always keen to perform our duty of fair representation towards clients. 

Quashing of FIR

Quashing of FIR

by | Dec 2, 2020 | General

FIR is a foundation of the criminal case, in legal context FIR stands for First Information Report.  Basically it is information associated with occurrence of any offence to the police. Once the FIR gets lodged, it goes through various stages of legal actions such as investigation, arrest, bails, trial, conviction, acquittal and sentencing. However, the complainant and accused can escape these stages by recording the statement with regard to settlement of their dispute before the concerned Magistrate and in some case parties need to seek permission of the court before doing so.

What does mean by the term quashing?

Quashing means to abate, dismiss or to make it completely void. Quashing of FIR means to cease the legal machinery which had been set in motion. In easy terms, it means to stop the process of legal proceedings which are in process. FIR can be quashed by invoking inherent powers of High Court which are contemplated under Section 482 of the Code of Criminal Procedure.

When FIR can be quashed?

Usually petition for quashing of FIR is filed before the filing of charge sheet. Generally the courts discouraged the practice of filing the quashing petition after filing of charge sheet. However, as per the wide scope of Section 482 of Cr.P.C. FIR can be quashed at any stage of the criminal proceedings.

Which Court can quash the FIR?

A High Court can quash the FIR by using its inherent powers granted under Section 482 of Cr.P.C. The High Court can quash FIR under this Section if it thinks that lodged FIR is a false one and was lodged with the sole motive to defame and trouble the aggrieved person. If High Court junked the plea for quashing then aggrieved person can move to Supreme Court by filing Special Leave Petition (SLP) under Article 136 of the Indian Constitution.

Conditions for quashing of FIR:

The Hon’ble Supreme Court in case of State of Haryana v. Bhajan Lal (AIR 1992 SC 604) laid down some conditions for quashing of FIR under Section 482 of Cr.P.C. These conditions are summarized below:-

  • Where the allegations made in the FIR do not constitute a clear case against the accused.
  • Where the allegations in the FIR and other materials do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
  • Where the allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
  • Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer, unless the Magistrate has issued order for the same, as contemplated under Section 155 (2) of the Code.
  • Where the allegations in the FIR are absurd to the extent that no prudent man can ever reach a just conclusion that there are sufficient ground for proceeding against the accused.
  • Where there is express legal bar engrafted in any provision of the Code or concerned Act under which a criminal proceeding is instituted, with regard to the institution and continuance of the proceedings and/ or where there is specific provision in the Code or concerned Act, providing efficacious redress for the grievance of the aggrieved party.
  • Where a criminal proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and/or personal grudge.

Can FIR be quashed after filing of the charge sheet?

The High Court by exercising its inherent powers can quash the FIR even after filing of the charge sheet by the prosecution. The Supreme Court in Anand Kumar Mohatta and Anr. V. State (Government of NCT of Delhi) (Criminal Appeal No. 1395 of 2018) held that while exercising power under Section 482 of the Cr.P.C., the court can quash the FIR even if the charge sheet has been filed during the pendency of petition under Section 482, as the power under Section 482 is to be exercised to prevent the abuse of process and miscarriage of justice. The Apex Court also emphasized that powers under Section 482 of the Cr.P.C. can be exercised even if a discharge application is pending before the Magistrate.

Quashing of FIR on the basis of compromise:

The FIR can be quashed at any stage on the basis of compromise by the High Court. Both parties i.e. complainant and accused can enter into a compromise and then can file joint petition under Section 482 of Cr.P.C. on the basis of said compromise. The court after examining the all aspects of the matter may order for quashing.

However, heinous crimes such as murder, rape, and dacoity etc., offences which are not of private nature and have serious impact on the society, offences under special statutes like Prevention of Corruption Act and offences committed by public servants while working in that capacity can’t be quashed on the basis of compromise.

FIR can be quashed, even after the conviction where parties entered into a compromise during the pendency of appeal. In Dr. Arvind Barsaul v. State of Madhya Pradesh &another 2008 (2) RCR (Criminal) Page 910, The Apex Court quashed the FIR under Section 498-A IPC on the basis of compromise which have been arrived between the parties during the pendency of appeal after conviction.

What are Compoundable and Non-compoundable offences?

Section 320 of the Code of Criminal Procedure deals with the compounding of offences and categorized the offences into two parts i.e. offences compoundable without the permission of the court and offences compoundable with the permission of the court.

Compoundable offences: Under this category those offences are classified which are less serious in nature and can be settled by the parties with or without permission of the court. Offences such as Adultery, causing hurt, defamation and criminal trespass etc can be settled without the prior permission of the court. The offences where the permission of the court is required before compromise includes theft, criminal breach of trust, voluntarily causing grievous hurt and assault on woman with intention to outrage her modesty etc.

Non-compoundable offences: Those offence which are serious in nature and made impact on private party as well as society falls under the category of Non-compoundable offences. In such offences compromise is not allowed. However, Supreme Court in its latest verdict observed that High Court can quash the criminal proceedings even in case of non-compoundable offences where parties have entered into compromise by using its power under Section 482 of Cr.P.C.

What are other reliefs?

The remedy available under Section 482 of Cr.P.C. is applicable when there is abuse of legal process. There are other reliefs that can be sought in case of false FIR. These reliefs include the cancellation report and discharge of the accused. The cancellation report is presented by the police after conclusion of investigation. Cancellation report is presented by the investigation officer when he comes to the conclusion that no offence is committed. Investigation officer is duty bound to supply the copy of the same to the informant. If the Magistrate accepts the cancellation report presented by the police then FIR is deemed to be cancelled. It is notable that Magistrate can refuse to accept the cancellation report and can take cognizance of the offence.

The other one is discharge application which is only applicable in warrant cases. Warrant cases include those crimes which are serious in nature and punishable with imprisonment of more than 2 years. When police files the charge sheet against the accused after completion of investigation the Magistrate may disagree with the challan and drop the proceedings pending against the accused. Where the warrant case is instituted upon police complaint i.e. FIR, Magistrate can discharge the accused under Section 239 of Cr.P.C. after considering the Final Report and statements of witness showing that no prima facie case is made out.

In case where warrant case is instituted upon private complaint i.e. compliant made to Magistrate, after being satisfied that no case is made out against the accused, Magistrate can discharge the accused under Section 245 of the Cr.P.C.

Conclusion:

The laws are made to guard people and to ensure that nobody is suppressing anyone. It is true that there are number of instances where person uses these laws to create trouble for innocent one. To tackle this lawmakers have given the High Court a power to quash an FIR if they are satisfied that it had been lodged with the only motive to trouble the person and it might be futile to continue the legal proceedings against that person.     It is well settled law that High Court uses it inherent power where it is satisfied that offence is entirely personal in nature and doesn’t have any impact on society and quashing of such proceedings would bring harmony and secure ends of justice.

-Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali