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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELATE JURISDICTION

Criminal Bail Application No. __ Of 2014

[APPLICATION FILED UNDER SECTION 438 OF THE


CODE OF CRIMINAL PROCEDURE, 1973]

IN THE MATTER OF:

SIDDHARTH RAJENDRA RUNWAL …..APPLICANT

VERSUS

STATE OF MAHARASHTRA …..RESPONDENT

ON SUBMISSION TO THE HON’BLE HIGH COURT OF BOMBAY

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT


TABLE OF CONTENTS

LIST OF ABBREVIATIONS.....................................................................................................3

INDEX OF AUTHORITIES......................................................................................................4

BOOKS:..................................................................................................................................4

CASES:...................................................................................................................................4

WEBSITES:.............................................................................................................................8

STATEMENT OF JURISDICTION...........................................................................................9

STATEMENT OF FACTS........................................................................................................11

ISSUE RAISED.......................................................................................................................13

SUMMARY OF ARGUMENTS..............................................................................................14

WRITTEN SUBMISSIONS....................................................................................................15

PRAYER..................................................................................................................................40

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LIST OF ABBREVATIONS

 ¶ – Paragraph

 AIR – All India Reporter

 ed. – Edition

 p. – Page

 pp. – Pages

 SC – Supreme Court

 SCC – Supreme Court Cases

 SCR – Supreme Court Reporter

 Supp. – Supplement

 Vol. – Volume

 UDHR - Universal Declaration of Human Rights


 ICCPR - International Covenant on Civil and Political Rights

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INDEX OF AUTHORITIES

Books Referred

Commentary on the Code of Criminal Procedure Act, 1973 by Ratanlal & Dhirajlal

Commentary on the Indian Penal Code, 1860 by Ratanlal & Dhirajlal

The Indian Penal Code; With Commentary by W. R. Hamilton

Commentary on the Indian Evidence Act, 1872 by Ratanlal and Dhirajlal

Commentary on the Constitution of India – Volumes I and II by Durga Das Basu

Commentary on Protection of Women from Domestic Violence Act, 2005 & Rules: With Allied

Laws – V. R. Choudhari

Cases Referred

Pandurang v. State of Hyderabad, AIR 1955 SC 216: 1955 CrLJ 572

Mehbub Shah v. Emperor, AIR 1949 PC 118 (120-121).

Garib Singh v. State of Punjab, 1972 CrLJ 1286 (SC): (1972) 3 SCC 418: AIR 1973 SC 460.

Ram Tahal v. State of U.P., 1972 CrLJ 227 (SC) (1972) 1 SCC 136 : 1972 CrLJ 227

B.N. Srikantiah, AIR 1958 SC 672: 1958 CrLJ 1251.

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State v. Dharnidhar, AIR 1976 Ori 79: 42 Cut LT 29.

Sita Ram v. State of Bihar, 1976 CrLJ 800.

Shyam Singh v. State of U.P., 2001 CrLJ 1632 9All)

Waliullah v. State of U.P., AIR 1951 ALL 21: 52 CrLJ 131:1950 All LJ 884 (FB).

Basher v. State, 1953 CrLJ 1505.

Risideo Pande v. State of U.P.; AIR 1955 SC 334.

Jamuna Chowdhary v. State of Bihar, 1971 CrLJ 898.

Emperor v. Maung Po Nyan, AIR 1916 Low Bur 98: 17 CrLJ 465.

P.P. v. N.S. Murthy, 1973 CrLJ 1238 (AP).

Emperor v. Jiwa Arma, 3 CrLJ 1866 (Gau).

Sridevi, 1974 CrLJ 126 (All).

Abdul Sattar v. Moti Bibi, AIR 1930 Cal 720: 127 IC 551:31 CrLJ 1223.

C.N. Narayan AIR 1953 SC 478

Daityari, Tripatti v. Subodh Chandra Choudhury, (1942) 2 Cal 507

Prathibha Rani Vs Suraj Kumar, AIR 1985 SC 628

Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397

Bairo Prosad v. Laxmibai, 1991 CrLJ 2535 (MP)

Wazir Chand v. State of Haryana, AIR 1989 SC 378.

State v. Regulagadda Anandarao, 1996 Cr LJ 4503 (AP)

T.S Prasad v. State, 1998 Cr LJ 3900 (Ker)

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Suresh Kumar Singh v. State, 2008 Cr LJ 2547 (All)

Issa Venkateswarlu v. State, 2008 Cr LJ 4092 (AP)

Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209.

Basheer v. State, 2004 Cr LJ 3785 (Ker)

Shiv Dayal Arora v. Renu Arora, 2007 Cr LJ 2972 ( P&H)

Raghubir Singh v. State, 2007 Cr LJ 2979 (HP)

Thilari Narayana Rao v. State, 2003 Cr LJ NOC 171 (AP)

Wazir Chand v. State of Haryana, AIR 1989 SC 378

Regurry Sampath Reddy v. State, 1996 Cr LJ 1528 (AP)

Abdul Barek v. State, 1996 Cr LJ 1837 (Cal)

Pukh Raj, (1953) 3 Raj 983

Abraham, AIR 1960 Ker 236

Mohammed Sabad Ali v. Thuleswar Borah, (1954) 6 Ass 274

Allipuram Subbaih v. Brojja Venkata Subbamma, AIR 1942 Mad 672

Jogayya, (1887) 10 Mad 353,354; Vaz v. Dias, (1929) 32 Bom LR 103.

Abraham v. State of Kerala, AIR 1960 Ker 236:1960 CrLJ 910 (Kant)

Mrutunjaya Pattanaik v. Dhaneswar Dalabehora, (1990) 1 Crimes 105 (Ori).

Silvester Vaz v. Louis Dias, AIR 1930 Bom 120.

S. Gopal, 1953 CrLJ 744.

Guranditta v. Emperor, AIR 1930 Lah 344 (2): 127 IC 860 :32 CrLJ 62.

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Jayakrishna Samanta v. Emperor, AIR 1917 Cal 570: 24 Cal LJ 137: 18 CrLJ 17.

Uday singh v. State of Maharashtra, AIR 2007 NOC 1640 (Bom)

Thimma v. State of Mysore, AIR 1971 SC 1871

Latif Khan v. state, 2008 Cr LJ 3246

Natturasu v. State, 1998 CrLJ 1762 (Mad)

State of Andhra Pradesh v. Bimal Krishna Kundu, AIR 1997 SC 3589

Suresh Vasudeva v. state, 1978 Cr LJ 677(Del)

Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 : 2003 SCC (Cri)

Adri Dharan Das v. State of West Bengal, 2005 CrLJ 1706 (SC): (2005) 2 SCC 303.

Om Prakash v. State of Punjab, 2002 (1) Crimes 124 (P&H).

Sajjan Kumar v. State, 1991 CrLJ 645, 633 (Del)

State of Karnataka v. Rangappa, 2004 CrLJ 2720 (2721) (Kant-DB).

Rajesh Utra Kumar v. State of Chattisgarh, (2003) 3 Cur Cri R 528.

Avtar Singh v. State of Haryana, 2006 CrLJ 1866 (1869, 1870) (P& H).

PG Gupta v. State, (2002) 101 DLT 193.

Gaffarsah v. State of Karnataka, 1991 CrLJ 2136, 2138 (Kant).

Munna Muni Khan v. State of Rajasthan, 1996 CrLJ 831 (Raj).

Iqbal Singh v. State of Harayana, 2007 CrLJ (NOC) 243 (P&H).

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Website Referred

www.westlaw.com

www.indiankanoon.com

www.manupatra.com

www.supremecourtofindia.nic.in

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STATEMENT OF JURISDICTION

The applicant has approached the Hon’ble High Court of Bombay under Section 438 of the Code

of Criminal Procedure, 1973 which reads as under:

438. Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having

committed a non- bailable offence, he may apply to the High Court or the Court of Session for a

direction under this section; and that Court may, if it thinks fit, direct that in the event of such

arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may

include such conditions in such directions in the light of the facts of the particular case, as it may

think fit, including-

(i) a condition that the person shall make himself available for interrogation by a 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;

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(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail

were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station

on such accusation, and is prepared either at the time of arrest or at any time while in the custody

of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of

such offence decides that a warrant should issue in the first instance against that person, he shall

issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

The Respondent humbly submits to the jurisdiction invoked by the applicant.

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STATEMENT OF FACTS

 Mrs. Revati Siddharth Runwal (hereafter referred to as the Complainant), aged – 24 yrs,
married to Mr. Siddharth Rajendra Runwal on 23rd May 2011 as per Hindu Rites and Rituals,
has proceeded with a legal complaint against her husband and her In-laws.

 In pursuance of the same, an FIR was lodged by the Complainant (No. 94/13) at Deccan
Police Station (PS) against her husband (hereafter referred to as Accused No. 1), her Father-
in-law, namely Rajendra Runwal (hereafter referred to as Accused No.2), her Mother-in-law,
namely Sunanda Rajendra Runwal (hereafter referred to as Accused No.3), and one Mrs.
Suman Lahoti, the Aunt-in-law (hereafter referred to as Accused No. 4).

 The Complainant has been repeatedly harassed mentally and physically by Accused No. 1, 2,
3 & 4 and the said harassment has been taking place since the day of the Complainant’s
wedding ceremony as the food provided in the ceremony was deemed insufficient for
Accused No.2 & 4 and their guests.

 The Complainant’s father besides having incurred an expenditure of Rs.12,00,000/- (Twelve


Lakhs) and providing an Alto Car, a Bajaj Pleasure Scooter along with 10 tolas of gold as ‘
STRIDHAN’ on the abovementioned wedding ceremony was compelled and tortured to bring
in more money.

 Further, since the parents of the complainant were unable to pay a sum of Rs.1,00,000/- (One
lakh) , she had been coerced to bring in the same amount failing which she has been
physically and mentally harassed by all the four accused.

 Also, Accused No.3 took away all the gold ornaments presented to the Complainant at the
time of the Wedding.

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 Accused no.2 and 4 in collusion, to malign the character of the complainant and her family,
picked petty fights with her, sent her back to her maternal house and categorically warned the
father to keep a check at the misdemeanour, ill conduct and misbehaviour of their daughter.

 The complainant further asserts that Accused No.1 has been physically abusing her as he
found out about her alleged affair in April 2012 with one Mr. Hiten, brutally beat her up and
assassinated her character as he was of the opinion that complainant maintained physical
relations with other men, where after he dropped the complainant back to her maternal house.

 After amicable settlement between her father and her in-laws, she was taken back to her
matrimonial house on the condition that she would give in writing that she would not commit
suicide. The Complainant alleged that her after her refusal of the same, she was sent back to
her maternal house and was told to stay away from Accused No. 1.

 It is further averred by the Complainant that in May 2012, the Accused, fed up with her
constant threats to commit suicide, filed a non-cognizable case against the Complainant with
the Deccan PS and after settling the dispute in the PS, the complainant was brought back to
her matrimonial house.

 It is further alleged that due to constant disputes and petty arguments between the
Complainant and her In-laws, she was asked to shift out where after the complainant and
Accused No. 1 rented a flat in Vadagaon Dhayari.

 It is reiterated by the Complainant that she would be beaten up on several occasions as he


deemed the complainant unchaste who indulged with many other men, also asserts that she
had been abused by Accused no.1 who also threatened to kill her on 3rd Dec 2012 as she
insisted on going to her maternal house to attend her Niece’s Birthday.

 The complainant stated that after unrequited recurrent quarrels between the couple, the
Accused decided to break all ties with the Complainant after which she was forcefully driven
back to her maternal house and thrown off at Law College Road in 20th December 2012 at
10.00 a.m.

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 The complainant submitted that about 4.00.p.m. on the very same day, she received a call
from her Brother-in-Law, one Mr. Ojas Runwal informing her that Accused No.1 has left
their house at Vadgaon, Dhayari leaving behind a letter explaining the same.

 Subsequently, the complainant has filed an FIR on 27th March 2013 at 14.50.hrs for offences
punishable under Sections 498(A), 406, 323, 34, 504, 506 of the IPC, 1860.

ISSUE RAISED

WHETHER THE INSTANT APPLICATION FOR ANTICIPATORY BAIL SHOULD BE

ALLOWED?

SUMMARY OF ARGUMENTS

The argument that there wasn’t a prior concert of minds between all the accused is baseless.

In the present case of Siddharth Rajendra Runwal v. State of Maharashtra, as is clear from the
FIR filed by the complainant, the complainant had been repeatedly and severely caused hurt by

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her husband and her in-laws (the accused). There has been a gross violation of her physical,
mental and moral integrity and domestic violence has been inflicted against her as per the
PWDVA.

All the vital conditions of Section 504 have been met with in the instance case as the Accused
clearly abused and tortured the complainant with an intention to break public peace as any
reasonable man would retaliate to such inhuman treatment in such a manner essentially leading
to breach of peace

From the above, it may be safely concluded the allegations made against the accused are
justifiable. The accused has not only committed offences under Sections 498(A), 406, 323, 34,
504, 506 of the IPC, 1860 but has also infringed the Fundamental Right to Life and Personal
Liberty of the complainant guaranteed under Article 21 of the Constitution of India 1 and
reinforced by the UDHR, ICCPR and the Declaration on the Elimination of Violence against
Women. It is further submitted that the complainant is eligible for maintenance from her
husband as demanded by her.

WRITTEN SUBMISSIONS

 The allegations made against the accused are justifiable.

Section 34:

1
No person shall be deprived of his life or personal liberty except according to procedure established by law.

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When a criminal act is done by several persons, in furtherance of the common intention of
all, each of such persons is liable for that act in the same manner as if it were done by him
alone.

Principle –

As stated in a Supreme Court case:

In case of S. 34, it is well established that a common intention presupposes prior concert. It
requires a pre-arranged plan because before a man can be vicariously convicted for the criminal
act of another, the act must have been done in furtherance of the common intention of all of
them.2 Accordingly, there must have been prior meeting of the minds. Several persons can
simultaneously attack a man. Each can have the same intention, that is, intention to kill, and each
can individually inflict a separate fatal blow and yet none would have the common intention
required by the section because there was no prior meeting of the minds to form a pre-arranged
plan.3

Therefore S. 34, IPC, would apply even if no charge is framed under that section provided of
course from the evidence it becomes clear that there was pre-arranged plan to achieve the
commonly intended object.4 Thus where six persons were charged under ss. 148, 302/149 and
307/149, IPC, but two were acquitted, the remaining four accused could be convicted on the
charges of murder and attempt to murder with the aid of S.34 of the Penal Code.5 This section
really means that if two or more persons intentionally do a thing jointly, it is just as same as if
each of them had done it individually.6

2
Pandurang v. State of Hyderabad, AIR 1955 SC 216: 1955 CrLJ 572.

3
Mehbub Shah v. Emperor, AIR 1949 PC 118 (120-121).

4
Garib Singh v. State of Punjab, 1972 CrLJ 1286 (SC): (1972) 3 SCC 418: AIR 1973 SC 460.

5
Ram Tahal v. State of U.P., 1972 CrLJ 227 (SC) (1972) 1 SCC 136 : 1972 CrLJ 227

6
B.N. Srikantiah, AIR 1958 SC 672: 1958 CrLJ 1251.

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The antithesis is between the preliminary stages, the agreement, the preparation, the planning
that is covered by S. 190, and the stage of commission when the plan is put into effect and
carried out. In other to convict a person for an offence with the aid of provisions of S. 34 it is not
necessary that the person should with his own hands commit the criminal act.

Common Intention-

To invoke S. 34, prosecution has to establish that criminal act was committed in concert pursuant
to a pre-arranged plan. Distinction between common intention and similar intention should be
borne in mind although the dividing line is rather thin.7 But a distinct previous plan is not
necessary for a charge under S. 34.8Section 34 does not create a distinct offence. It only lays
down the principle of joint criminal liability. The necessary condition for the application of S.34
are common intention to commit an offence and participation by all the accused in doing act or
acts in furtherance of the offence; that is to say, if two or more persons had common intention to
commit murder and they had participated in the acts done by them in furtherance of that common
intention. If these two ingredients are established, all the accused would be liable for the said of
the offence; that is to say, if two or more persons had common intention to commit murder and
they had participated in the acts done by them in furtherance of that common intention, all of
them would be guilty of murder.9

In the instance case, Accused Nos. 1, 2, 3 and 4 have the common intention of causing hurt to the
complainant in order to threaten her into giving them dowry and they had participated in various
acts done by them in furtherance of the said common intention.

COMMON INTENTION TO COMMIT A CRIMINAL ACT: DEVELOPMENT AT THE


SPURT

As already stated for the operation of S.34 there must be pre-arranged plan. But a pre-arranged
plan does not mean that there should be a conference where resolutions are moved and a decision

7
State v. Dharnidhar, AIR 1976 Ori 79: 42 Cut LT 29.

8
Sita Ram v. State of Bihar, 1976 CrLJ 800.

9
Shyam Singh v. State of U.P., 2001 CrLJ 1632 9All)

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arrived at to commit a particular crime, the plan might have been arranged just half a minute
before the actual beating started. 10 Relying on this observation, an Allahabad case held
common intention can certainly be found by conduct; neither a written nor an oral agreement is
needed to constitute a common intention. In most cases of common intention, there is no
agreement neither in writing or oral. As common intention can be found only a moment before
doing of the criminal act, the suddenness of a quarrel or fight does not by itself negative the
existence of common intention, just as the fight is sudden, the common intention also might have
been found suddenly.11

Accepting the legal position that common intention may develop at the spot, the Supreme Court
held: ‘common intention’ under S.34 pre-supposes a prior concert, that is a prior meeting of the
minds, but such pre-concert can develop on the spot and without any long interval of time
between it and the doing of the act commonly intended.12

Therefore, the argument that there wasn’t a prior concert of minds between all the accused is
baseless.

Section 323: Whoever, except in the case provided for by section 334, voluntarily causes
hurt, shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to one thousand rupees, or with both.

When the death is caused by blow on deceased by fist, there being no intention or knowledge
that death would be caused, conviction under Section 323 only is proper.13

The accused, who had a quarrel with his debtor over non-discharge of a loan pelted brickbats at
his house knowing that there were occupants in it, and hurt one of them who was under medical

10
Waliullah v. State of U.P., AIR 1951 ALL 21: 52 CrLJ 131:1950 All LJ 884 (FB).

11
Basher v. State, 1953 CrLJ 1505.

12
Risideo Pande v. State of U.P.; AIR 1955 SC 334.

13
Jamuna Chowdhary v. State of Bihar, 1971 CrLJ 898.

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treatment for ten days, it was held, that the accused should be convicted under Section 323 and
not under Section 326, as the hurt caused was the natural and probable consequence of his act.14

Accused persons came with lathies and assaulted the victim and witnesses stated that main
grouse between the parties was regarding irrigation of fields. The occurrence had taken place in
the heat of passion due to sudden quarrel, injuries caused were non- vital parts and there was no
intention to cause death. It was held that conviction under Sections 323/325 read with Section 34
was proper.

SUDDEN QUARREL-

The accused, a shopkeeper, in a sudden quarrel hit his wife on the head with an iron weight of
200 grams which resulted in her death. The medical evidence showed that the injury was of
simple nature and there was no evidence that the deceased died of shock caused by the injury. He
was held liable only under Section 323, I.P.C. and not under section S. 304. I.P.C. 15The accused
in a case during taking supper at night excited by the wearing of a silver ear ring by his wife who
had explained that it was not gifted by her alleged paramour but bought by herself, struck her at
abdomen and it was in evidence that the lady had been suffering from internal complaints and
fever and she expired next morning, it was held that the offence comes not under Section 304,
I.P.C. nor Section 302, I.P.C. but Section 323, I.P.C.16So also where the wife attacked the
husband with a brick causing multiple injuries resulting in his death but according to medical
evidence the injuries were of a simple nature and were not sufficient in the ordinary course of
nature to cause death, it was held that the accused wife could not be convicted under S. 302
I.P.C. Her conviction was accordingly changes to one under S. 323 I.P.C.17accused accompanied
by a few officers of the Civil Court went to execute a Civil Court decree of ejection. But they
were obstructed in the process by a lady who had occupied the house and who was not a party to

14
Emperor v. Maung Po Nyan, AIR 1916 Low Bur 98: 17 CrLJ 465.

15
P.P. v. N.S. Murthy, 1973 CrLJ 1238 (AP).

16
Emperor v. Jiwa Arma, 3 CrLJ 1866 (Gau).

17
Sridevi, 1974 CrLJ 126 (All).

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the decree. She alleged to be the real tenant. The accused while forcibly removing her caused
simple hurt to her. The accused was convicted under Section 323 of the I.P.C.18

In the present case of Siddharth Rajendra Runwal v. State of Maharashtra, as is clear from the
FIR filed by the complainant, the complainant had been repeatedly and severely caused hurt by
her husband and her in-laws (the accused). There has been a gross violation of her physical,
mental and moral integrity and domestic violence has been inflicted against her as per the
PWDVA19.

Section 406 – Whoever commits criminal breach of trust shall be punished with
imprisonment of either description for a term which may extend to three years, or with
fine, or with both.

To constitute this offence, there must be dishonest misappropriation by a person in whom


confidence is placed as to the custody or management of the property in respect of which the
criminal breach of trust is charged. The ownership or beneficial interest in the property in respect
of which the criminal breach of trust is alleged to have been committed must be in some person
other than the accused and the latter must hold it on account of some person or in some way for
his benefit.20

18
Abdul Sattar v. Moti Bibi, AIR 1930 Cal 720: 127 IC 551:31 CrLJ 1223.

19
Definition of domestic violence - For the purposes of this Act, any act, omission or commission or conduct of the
respondent shall constitute domestic violence in case it –

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the
aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse
and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related
to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in
clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
20
C.N. Narayan AIR 1953 SC 478

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Scope and Object –The offence consists of any of the four positive acts- 1) Misappropriation, 2)
Conversion, 3) User, 4) Disposal of property. Neither failure to account nor breach of contract,
however dishonest, is actually and by itself the offence of criminal breach of trust.21

The ingredients of the offence of criminal breach of trust are-

1- The accused must have been entrusted with the property or dominion over it
2- The accused must have misappropriated the property or disposed of the property in
violation of such trust.

Offence under sec 405 of IPC can be said to have been committed only when all the ingredients
of that offence as defined in the statute are found to have been satisfied.

Essentials of offence of criminal breach of trust –

An offence of criminal breach of trust necessarily involves the facts of –

A – Entrustment of property, B – a dishonest misappropriation or conversion of property by


agent to his own use or C – dishonest use or disposal of the property in violation of mandate of
the law prescribing the mode in which the entrustment has to be discharged or D – Dishonest use
or disposal of the property in violation of the terms of any legal contracts either expressed or
implied regarding the discharge of the entrustment or willfully allowing some other person to do
so.

To establish a charge under the section, the fact of entrustment of property as well as any or more
of the other alternative as aforesaid have to be established by the prosecution, the gist being a
dishonest intention on the part of the agent. The burden of proving such dishonest intention is on
the prosecution though however it being often difficult to get any direct evidence of intention, it
may be justifiably inferred from the attending circumstances as in the instant case. The conduct
by the accused and any false explanation given by him may also be an additional factor against
him to be taken into consideration.

21
Daityari, Tripatti v. Subodh Chandra Choudhury, (1942) 2 Cal 507

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As in the present case, the entrustment is apparent and the accused has failed to account for the
property when he is accountable and is not able to offer an acceptable explanation for the loss,
the onus to establish which is upon him, is further offering a false explanation that the gold
ornaments of the complainant are in her possession, a criminal intention maybe readily inferred.
It must be noted that the said gold articles (of 20 tolas in total) were gifted to the complainant on
her marriage with accused no. 1 as Stridhan.

Any property or valuable given to a woman at the time of her marriage or during the marriage
ceremony, any property conferred on her by way of a will, any gift given to her by her parents,
siblings and in-laws are all part of the woman’s property (Stridhan). She is the rightful owner of
all such property and her husband or his relatives have no right over such property. With a view
to avoiding any likely future dispute regarding stridhan property, the Dowry Prohibition Act,
1961 has provided that the presents made at the time of marriage should be entered in the list to
be maintained in accordance with the rules made under the Act.

The Supreme Court in Prathibha Rani Vs Suraj Kumar 22 has observed that stridhan property of a
married woman, even if it is placed in the custody of her husband or in-laws, they would be
deemed to be trustees and therefore are bound to return the same when demanded by her. A
person who denies a woman her dowry-property or stridhan as explained above is guilty of the
offence of criminal breach of trust u/s 405/406 of the IPC.

STRIDHAN: Refusal to return –

This appears to be too broadly stated and may not always be correct in the context of Indian Law.
In view of the new concept when one’s spouse refuses to return Stridhan to the wife, it
constitutes criminal breach of trust.23

22
AIR 1985 SC 628
23

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Refusal to return to a wife, stridhan, is a criminal breach of trust and a continuing offence in the
sense, every demand and its refusal gives a fresh starting point for limitation. In the view of
finding the stridhan being exclusive property of the wife, on proof that she entrusted that
property or dominion over it to her husband or any other member of the family, there is no need
to establish any further special agreement to establish that the property was given to the husband
or other member of the family. It requires to be established by the complainant or the prosecution
as to how and in what manner the entrustment of stridhan came to be made to the husband or any
other member of the family.24

Essential Ingredients – The section requires –

1- Entrusting any person with property or with any dominion over property
2- The person entrusted a) dishonestly misappropriating or converting to his own use that
property; or b) dishonestly using or disposing of that property or willfully suffering any other
person so to do in violation –
i) Of any direction of law prescribing the mode in which such trust is to be discharged, or
ii) Of any legal contract made touching the discharge of such trust.

Evidence – To bring home the offence under section 406, I.P.C., the ingredients of entrustment
with property, having domain over it, and the same having been misappropriated or converted to
his own use by the accused person, are required to be proved.25

Section 498-A. Husband or relative of husband of a woman subjecting her to cruelty.--


Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to
three years and shall also be liable to fine.

Explanation - For the purposes of this section," cruelty" means-


(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of
the woman; or

24
Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397

25
Bairo Prosad v. Laxmibai, 1991 CrLJ 2535 (MP)

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(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account
of failure by her or any person related to her to meet such demand.

This section reflects the anxiety to extend protection of the weaker spouse. Traditionally in any
society, a woman is subjected to the whims and caprices of man, especially when it relates to the
relationship of husband and wife.

Section 498-A, I.P.C, shows that whoever being the husband or relative of the husband of a
woman subjects such woman to cruelty shall be punished with imprisonment for a term which
may extend to three years and shall be liable to fine. Clause (b) of the explanation to that section
shows that the harassment of the woman where such harassment is with a view to coercing her or
any person related to her to meet any unlawful demand for property or valuable security or is on
account of the failure by her or any other person related to her to meet such demand would
amount to cruelty u/s 498-A.26

In a Supreme Court case, the wife had filed complaint against her husband and her in-laws for
torturing and harassing her but hostile witness did not support her statement. It was held that this
would not render the evidence of the complainant incredible as fact of cruelty by husband was
proved. The husband was hence held guilty of cruelty.27

Cruelty to wife: Offence: Provision Prospective –

Harassment and cruelty on account of dowry was established and two consecutive attempts made
by the wide to end life, within one year, was also proved. It was held that there was proximate
and live link between the demand for dowry, consequential harassment and unnatural death. The
circumstances showed the complicity of the accused husband in crime and for that he was rightly
convicted.28

26
Wazir Chand v. State of Haryana, AIR 1989 SC 378.

27
State v. Regulagadda Anandarao, 1996 Cr LJ 4503 (AP) , T.S Prasad v. State, 1998 Cr LJ 3900 (Ker)

MEMORIAL ON BEHALF OF THE RESPONDENT Page 23 of 40


In another case, husband harassed the deceased for non fulfillment of dowry demand and had
even threatened her with dire consequences. It was held that threat to life was unleased by the
accused clearly amounted to cruelty.29

Demand for Dowry30 –

The accused was found to have harassed the victim and subject her to cruelty in relation to
demand for dowry. It was held that conviction of accused under sec. 498 –A was proper.31

Harassment caused to victim was considered cruelty and within the meaning of section 498-A.32

The allegations made by a complainant were that she was being harassed for dowry and articles
for dowry were retained by her in-laws after turning her out of the house. Complaint was hence
filed at the place where was residing with her parents. It was held that the accused shall continue
committing breach of trust so long as the accused didn’t return the articles of dowry. Complaint
was held to be maintainable.33 The instant case is strikingly similar and therefore a complaint
under Section 498-A must be held to be maintainable.

28
Suresh Kumar Singh v. State, 2008 Cr LJ 2547 (All)

29
Issa Venkateswarlu v. State, 2008 Cr LJ 4092 (AP)

30
The Dowry Prohibition Act 1961

3. Penalty for giving or taking dowry. If any person, after the commencement of this Act, gives or takes or abets
the giving or taking of dowry, he shall be punishable with imprisonment which may extend to six months, or with
fine which may extend to five thousand rupees, or with both.

4. Penalty for demanding dowry. If any person, after the commencement of this Act, demands, directly or
indirectly, from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be
punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand
rupees, or with both: Provided that no court shall take cognizance of any offence under this section except with the
previous sanction of the State Government or of such officer as the State Government may, by general or special
order, specify in this behalf.
31
Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209.

32
Basheer v. State, 2004 Cr LJ 3785 (Ker)

33
Shiv Dayal Arora v. Renu Arora, 2007 Cr LJ 2972 ( P&H)

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In an instant case, the husband was proved to be a habitual trouble maker and had developed the
habit of beating up his wife wherein his conviction under section 498-A was held proper.34

Cruelty –

The wife was subjected to cruelty and harassment for not bringing in the dowry demand by the
accused. The evidence provided by the parents of wife was found reliable and conviction under
sec 498-A was held proper.35

Harassment for dowry in view of Clause (b) of the Explanation to Section 498-A, amounts to
cruelty. When repeated demands for dowry articles and money on the newly married bride and
her parents were made, and such articles recovered from the residence of the accused, the
husband and mother-in-law were liable to be convicted under sec 498-A, IPC.36

Unlawful demand for any property or valuable security: Cruelty –

Clause (b) to Sec 498-A, IPC, contemplates harassment of the woman to coerce her or any
relation to her to meet any unlawful demand for any property, valuable security or money. A
complainant if wants to come under the ambit of Cl. (b) of the explanation of Sec.498-A, can
succeed if she can prove there was “unlawful demand” by the husband or any of his relations in
respect of money or some valuable security.

The accused demanded dowry and other items and on non-fulfillment of demand, the deceased
was assaulted and tortured. Evidence of witness was reliable and corroborative. It was held that
offence u/s 498-A was made out and since accurate cruelty and harassment was meted out to the
deceased, the sentence for 6 months R.I. was awarded by the lower court was further enhanced to
R.I of 2 years.37

34
Raghubir Singh v. State, 2007 Cr LJ 2979 (HP)

35
Thilari Narayana Rao v. State, 2003 Cr LJ NOC 171 (AP)

36
Wazir Chand v. State of Haryana, AIR 1989 SC 378

37
Regurry Sampath Reddy v. State, 1996 Cr LJ 1528 (AP)

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In another case, the accused as per the eye-witness had assaulted and tortured the wife and he
could not explain the injury caused to the wife during her stay in the matrimonial home, it was
held that the accused was guilty of subjecting the wife to cruelty.38

Section 504: Whoever intentionally insults, and thereby gives provocation to any other
person, intending or knowing it to be likely that such provocation will cause him to break
the public peace, or to commit any other offence, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine or both.

This section provides a remedy for using abusive and insulting language. Abusive language
which may lead to breach of the public peace is not an offence. There must be an intentional
insult. Insult which may be offered by words or conduct. If it is by words, the words must
amount to something more than mere vulgar abuse.39 It is not every insult that can be classified
as “intentional insult” coming within the purview of Sec 504. Mere breach of good manners does
not constitute an offence under this section.40 If the insult is of such nature that it may give
provocation which might rouse a man to act either to break or the public peace or to commit any
other offence, the offence is committed.41 The offence contemplated in Section 504 is a serious
one. It is obviously intended to deal with persons who are responsible for breaches of peace of
the commission of offences as those who openly abet or incite them.42

The law makes punishable the insulting provocation which, under ordinary circumstances, would
cause a breach of the peace to be committed, and the offender is not protected from the
consequences of his act because the person insulted does not take the provocation in the manner
intended43, or exercises self-control, or being terrified by the insult, or overpowered by the

38
Abdul Barek v. State, 1996 Cr LJ 1837 (Cal)

39
Pukh Raj, (1953) 3 Raj 983

40
Abraham, AIR 1960 Ker 236

41
Mohammed Sabad Ali v. Thuleswar Borah, (1954) 6 Ass 274

42
Allipuram Subbaih v. Brojja Venkata Subbamma, AIR 1942 Mad 672

43
Jogayya, (1887) 10 Mad 353,354; Vaz v. Dias, (1929) 32 Bom LR 103.

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personality of the offender, does not actually break the peace or commits another offence. In
judging whether a particular abusive language comes within the mischief of section 504, I.P.C.,
the Court has to see what would be the effect of the language used in ordinary course of events
and not how the complainant actually behaved on being abused. Merely because a man of cool
temperament did not react violently or break the peace it does not follow that no offence was
committed by the accused.

SCOPE AND OBJECT:

For an offence under S. 504, what is material is not the reaction of the complainant which might
vary according to the sensitiveness of the individual insulted but the intention of the offender to
provoke or his knowledge that he is likely to provoke the person insulted to commit an
offence.44The offence punishable under S. 504 of the I.P.C. is a distinct offence which comes
under the category of misdemeanors. Using foul and provocative language against any person
which has a tendency of provoking a person to commit an offence is made punishable under this
section.

INSULT: Intentional insulting giving provocation to cause breach of peace is an offence


answering S. 504, I.P.C. Thus would words used by the accused should not only give insult but
also must provoke a man to cause breach of peace or to commit any other offence, or an offence
under S.504, I.P.C.45

An insult which under ordinary circumstances would be likely to provoke the person insulted to
cause a breach of peace is within the provisions of the section although the person insulted may
have been reduced to a state of abject terror so as to render improbable that he would commit a
breach of peace.46

The Court has merely to consider the standard of an ordinary reasonable man to see to see if the
insult offered is such as is ordinarily sufficient to arouse passions and provoke retaliation by

44
Abraham v. State of Kerala, AIR 1960 Ker 236:1960 CrLJ 910 (Kant)

45
Mrutunjaya Pattanaik v. Dhaneswar Dalabehora, (1990) 1 Crimes 105 (Ori).

46
Silvester Vaz v. Louis Dias, AIR 1930 Bom 120.

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words or deed. If the abusive language used or insult hurled, in the ordinary circumstances are
such that they ordinarily provoke the man or woman of his or her position to commit a breach of
the peace. The mere forbearance of the person insulted being provoked is not sufficient to protect
the offender.47

If the insult hurled or abusive language used intentionally is of such a nature as would, in the
ordinary course of events, lead the person insulted to break the peace or to commit the offence
under the law, the case is not taken away from the purview of S. 504 I.P.C., merely because the
insulted person exercised self-control or being terrified by the insult, or overawed by the
personality of the offender did not actually break the peace or commit any offence. In dealing
with section 504 the Court has not to judge the temperament or the idiosyncrasies of the
individual concerned. It should try to find out what in the ordinary circumstances would have
been the effect of the abusive language used. Where there is no doubt that the abusive language
used might ordinarily have resulted in broken limbs or at least in an affray and consequent
breach of the peace an offence under Section 504 is committed.48

Intention of the accused to provoke break of public peace is enough to constitute u/s. 504 I.P.C. It
is immaterial whether there occurred actual break of public peace.49

All the vital conditions of Section 504 have been met with in the instance case as the Accused
clearly abused and tortured the complainant with an intention to break public peace as any
reasonable man would retaliate to such inhuman treatment in such a manner essentially leading
to breach of peace.

Section 506 – Punishment for criminal intimidation -- Whoever commits the offence of
criminal intimidation shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both;

47
S. Gopal, 1953 CrLJ 744.

48
Guranditta v. Emperor, AIR 1930 Lah 344 (2): 127 IC 860 :32 CrLJ 62.

49
Jayakrishna Samanta v. Emperor, AIR 1917 Cal 570: 24 Cal LJ 137: 18 CrLJ 17.

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And if threat be to cause death or grievous hurt, or to cause the destruction of any property
by fire, or to cause an offence punishable with death or imprisonment for life, or with
imprisonment for a term which may extend to seven years, or to impute unchastity to a
woman, shall be punished with imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.

A bare perusal of section 506 makes it clear that Part II of the section deals with a graver form of
offence of criminal intimidation which is punishable with imprisonment of either description for
a term which may extend to seven years, or with fine, or with both.

Essential ingredients –

The offence of criminal intimidation has been defined under section 503 of IPC and Section 506
provides Punishment for the same –

1) Threatening a person with injury-


a) To his person, reputation and property; or
b) To the person, or reputation of any one in whom that person is interested.
2) The threat must be with the intent;
a) To cause alarm to that person; or
b) To cause that person to do any act which he is not legally bound to do as the means of
avoiding execution of such threat; or
c) To cause that person to omit to do act which that person is legally entitled to do as the
means of avoiding execution of such threat

In order to bring home the Accused under section 506, the complainant in the instant case has
asserted:

(a) That the accused threatened her;

(b) That this threatening was with injury to his person, reputation and property; or to the person,
reputation or property of another in whom the accused is interested;

(c) That this threatening was intended to cause alarm to the accused or to cause the accused to do
any act which is he is not legally bound to do, or to omit to do any act which that person is
legally entitled to do, as the means of avoiding execution of such threat;

(d) That the accused has in fact been alarmed by the threat.

From the above, it may be safely concluded the allegations made against the accused are
justifiable. The accused has not only committed offences under Sections 498(A), 406, 323, 34,
504, 506 of the IPC, 1860 but has also infringed the Fundamental Right to Life and Personal

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Liberty of the complainant guaranteed under Article 21 of the Constitution of India 50 and
reinforced by the UDHR51, ICCPR52 and the Declaration on the Elimination of Violence
against Women53. It is further submitted that the complainant is eligible for maintenance from
her husband as demanded by her.54

INDIAN EVIDENCE ACT

Evidence means and includes –

1) All statements which the court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements be deemed as oral evidence.

50
No person shall be deprived of his life or personal liberty except according to procedure established by law.

51
Article 3

Everyone has the right to life, liberty and security of person.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.


52
Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

53
Article 4

States should condemn violence against women and should not invoke any custom, tradition or religious
consideration to avoid their obligations with respect to its elimination. States should pursue by all appropriate means
and without delay a policy of eliminating violence against women and, to this end, should:

(b) Refrain from engaging in violence against women.

(c) Exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of
violence against women, whether those acts are perpetrated by the State or by private persons.
54
Hindu Adoptions And Maintenance Act, 1956

CHAPTER III

MAINTENANCE: Maintenance of wife

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this
Act, shall be entitled to be maintained by her husband during her lifetime.

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2) All documents including electronic records produced for the inspection of the court – such
documents are called Documentary Evidence

The word ‘evidence’ would mean the testimony, whether oral, documentary, electronic records or
real, which maybe legally received in order to prove or disprove some facts in dispute.55

Section 61 – the contents of documents may be proved either by primary or by secondary


evidence.

The contents of the document must be proved either by production of the document which is
called primary evidence or by copies or oral accounts of the contents, which are called secondary
evidence. Where there is documentary evidence, oral evidence is not entitled to any weight.56

Conduct of any party-

The conduct of an accused in absconding when the police gets suspicious of his complicity in the
offence of murder or any serious crime of that nature indicates to some extent the mind of a
guilty person. Flight from justice and its analogous conduct have always been deemed indicative
of a consciousness of guilt. “The wicked flee even when no man pursueth; but the righteous are
bold as a lion” is today universally conceded that the fact of an accused’s flight, escape from
custody, resistance to arrest, concealment, assumption of a false name, and related conduct are
admissible as evidence of consciousness of guilt, and thus of guilt itself. But this is not the only
conclusion which must lead the court. Such is the instinct of self preservation in an average man,
that when suspected of grave crimes, must be tempted to escapes arrest.57

To be an ABSCONDER, according to the Supreme Court – in the eye of law, it is not necessary
that a person should have run away from his home; it is insufficient if he hides himself to evade
the process of law even if the hiding place be in his own home.

Section 10 –

55
Phipson on Evidence, 2 (15th Edn., 2000)

56
Uday singh v. State of Maharashtra, AIR 2007 NOC 1640 (Bom)

57
Thimma v. State of Mysore, AIR 1971 SC 1871

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Where there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, anything said, done or written by
any of such persons in reference to their common intention, after the time when such
intention was first entertained by any of them, is a relevant fact as against each of the
persons believed to be so conspiring, as well for the purpose of providing the existence of
the conspiracy as for the purpose of showing that any such person was a party to it.

Anything said or done in reference to common intention, is admissible. The words ‘common
intention’ signifies a common intention existing at the time when the thing was said or done or
written by one of them are relevant as evidence. This section applies to acts and declarations of
one of a body of conspirators in respect of the common design of all.

Under section 34 of the IPC, when a criminal act is done by several persons, in furtherance of the
common intention of all, each of such persons is liable for the act in the same manner as if it
were done by him alone. This section makes admissible in evidence things, actions, said or done
by a conspirator in reference to the common design.

One of the objects of law of evidence is to restrict the investigation made by the courts within the
bounds prescribed by general convenience and this object would be completely frustrated by the
admission, on all occasions, of every circumstance of either side having some remote and
conjectural probative force, the precise amount of which might itself by ascertainable only by a
long trial and a determination of fresh collateral issues, growing up in endless succession, as the
inquiry proceeds.

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 The grounds on which the bail application has been filed are not tenable.

Grant of bail –

Accused constable husband set deceased on fire after his mother poured kerosene on her. The
fact was stated in the dying declaration made by the decreased and presence of husband in the
house was established by the evidence of witness and prima facie material on record established
involvement of both accused in the alleged offence. It was held that bail granted to mother-in-
law needed no interference but bail of husband could be cancelled as being a police constable, he
could influence prosecution witness.58

Section 438, CrPC –

Who can apply for anticipatory bail?

58
Latif Khan v. state, 2008 Cr LJ 3246

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A person apprehending arrest by magistrate remanding him to custody under section 209 can
apply for anticipatory bail under section 438.59

Where the accused apprehends arrest in view of the fact that a non-bail able warrant has been
issued against him on the basis of charge- sheet filed against him, he can apply for anticipatory
bail60

A person already on bail or apprehending an anticipatory bail can’t apply for bail/anticipatory
bail in respect of the same accusation.61 “He” in the expression “he may apply to court”
occurring in section 438 doesn’t include a stranger or a tadbirkar or a tout of a middleman.

Presence of the petitioner (Sub sec 1B) –

The presence of an applicant seeking anticipatory bail shall be obligatory at the time of the final
hearing of the application and passing of final order by the Court, if on an application made to it
by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
This amendment in the section will come into force from the date of its notification.

Applicability to all non-bailable offences – Section 438 applies to all non-bailable offences; it is
not confined to duly those non-bailable offences which are punishable with death or
imprisonment for life.62

Applicability to cognizable and non-cognizable cases – Anticipatory bail can be granted in


respect of non-bailable offences whether they are cognizable or non-cognizable offences.63

59
Natturasu v. State, 1998 CrLJ 1762 (Mad)

60
Supra 58

61
Supra 58

62
State of Andhra Pradesh v. Bimal Krishna Kundu, AIR 1997 SC 3589

63
Suresh Vasudeva v. state, 1978 Cr LJ 677(Del)

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The courts have the power to grant anticipatory bail even in cases where either cognizance has
been taken or charge sheet has been filed.64

Anticipatory bail may be granted to the following under section 438 –

1) Government Servants
2) Minors
3) Women
4) Old and infirm person
5) Handicapped persons
6) Persons having personal disability
7) Persons involved in petty cases
8) Persons who are likely to be harassed in police custody

In the instant case, the applicant does not fall under any of the above categories.

Broad circumstances for grant of bail –

Court can give direction for grant of bail under this section –

1 The provisions of this Section are an exception to the general rule and this power should be
exercised in exceptional cases

2 The consideration governing the exercise of power under this section are materially different
from those when an application for bail is made by a person who is in custody during the
investigation or who is convicted and his appeal is pending before the High Court.

3 In an application under this section the applicant must show that he has reasons to believe he
may be arrested for a non-bailable offence and grounds for such belief must be capable of being
examined by the Court objectively and this section cannot be invoked on the basis of vague and
general allegations, as anticipatory bail is a device to secure the individual’s liberty; it is neither a
passport to the commission of crime nor a shield against any and all kinds of accusations, likely
or unlikely.

64
Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 : 2003 SCC (Cri)

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4 In disposing of an application for anticipatory bail the High Court or the Court of Session must
apply its own mind to the question and decide whether a case has been made out for granting
such relief.

5 The filing of a first information report is not a condition precedent to the exercise of the power
under this section and anticipatory bail can be granted so long as the applicant has not been
arrested.

6 An order under this section can be passed without notice to the Public Prosecutor. But such
notice must be issued forthwith and the question of bail should be re-examined thereafter in the
light of respective contentions of the parties.

7 If the proposed application appears to stem not from motives of furthering the ends of justice
but from some ulterior motive, the object being to injure and humiliate the applicant by having
him arrested, a direction for the release of the application in pre-arrest bail in the event of the
arrest should generally be made.

8 Status in life, affluence or otherwise, are hardly relevant considerations while examining the
request for granting anticipatory bail. Anticipatory bail to some extent intrudes in the sphere of
investigation of crime and the Court must be cautious and circumspect in exercising such power.

9 Some very compelling circumstances must be made out to grant anticipatory bail to a person
accused of committing murder and that too when the investigation is in progress.

10 This section can be attracted when some influential person is the complainant against a weak
person or in the case of political rivalry between two persons if the case is instituted between two
political rivals. However there must be some indication that the allegations are false.65

11 Where the allegations against the petitioners are of general nature, anticipatory bail would be
allowed.66

65
Adri Dharan Das v. State of West Bengal, 2005 CrLJ 1706 (SC): (2005) 2 SCC 303.

66
Om Prakash v. State of Punjab, 2002 (1) Crimes 124 (P&H).

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The considerations which ought to weigh the Court while granting bail either under this section
or S. 439 is:-

1- The nature or gravity of the circumstances in which the offence is committed.


2- The position and the status of the accused with reference to the victim and the witnesses.
3- The likelihood of the accused fleeing from justice.
4- Of repeating the offence.
5- Of jeopardizing his own life being faced with a grim prospect of possible conviction in the
case.
6- Of tampering with evidence.
7- The history of the case as well as his investigation, and
8- Other relevant grounds which may apply to the facts and circumstances of a particular case.67

Anticipatory bail is not to be granted lightly, indiscriminately and in any event, that it should
never be granted in situations where it would seriously affect an investigation.68 While deciding
the question of anticipatory bail, the Court would not be guided by the cover of the allegations
but would look into the nature of the allegations and would decide whether a prima facie case
with which the accused can be charged is made out or not.69 Where custodial interrogation of the
applicant is necessary, anticipatory bail will be refused.70

Without looking into the gravity of the offences, bail would not be refuse merely because the
petitioner would influence the witnesses.71

If on the same materials, prayer for regular bail has been rejected, there can be no basis for
granting an anticipatory bail on the same materials. The grant of bail is the rule, and refusal is the
exception.72

67
Sajjan Kumar v. State, 1991 CrLJ 645, 633 (Del)

68
State of Karnataka v. Rangappa, 2004 CrLJ 2720 (2721) (Kant-DB).

69
Rajesh Utra Kumar v. State of Chattisgarh, (2003) 3 Cur Cri R 528.

70
Avtar Singh v. State of Haryana, 2006 CrLJ 1866 (1869, 1870) (P& H).

71
PG Gupta v. State, (2002) 101 DLT 193.

72
RL Jalappav. Delhi Police establishment, 1989 (3) Crimes 113, 120 (Kant).

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KEEPING OUT OF REACH OF POLICE:

The mere circumstance that the petitioners are keeping themselves out of the reach of the police
is not a sufficient to deny the proper relief of anticipatory bail to them, when there is no
possibility of the absconding as they are agriculturists by profession.73

GRANT OF BAIL TO CO-ACCUSED (PARITY):

When one co-accused is acquitted, on that ground alone the absconding co-accused is not
entitled to anticipatory bail.74 Where the allegations were that the petitioners harassed the
complainant and beat her, the co-accused sister-in-law who merely instigated the petitioner to
beat the complainant was granted anticipatory bail, but other petitioners were not granted
anticipatory bail on the grounds of parity.75

In conclusion, it is humbly requested of the Court to deny the applicant an anticipatory bail so
that he can be brought to justice.

73
Gaffarsah v. State of Karnataka, 1991 CrLJ 2136, 2138 (Kant).

74
Munna Muni Khan v. State of Rajasthan, 1996 CrLJ 831 (Raj).

75
Iqbal Singh v. State of Harayana, 2007 CrLJ (NOC) 243 (P&H).

MEMORIAL ON BEHALF OF THE RESPONDENT Page 38 of 40


PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsels for the

Respondent humbly and forever pray before this Hon’ble Court to kindly:

REJECT THE ANTICIPATORY BAIL APPLICATION.

AND/ OR

PASS ANY OTHER ORDER THAT IT DEEMS FIT IN THE INTEREST OF JUSTICE,

EQUITY AND GOOD CONSCIENCE.

And for this the Respondent as in duty bound shall forever humbly pray.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 39 of 40


(Counsels on behalf of the Respondent)

MEMORIAL ON BEHALF OF THE RESPONDENT Page 40 of 40