LATEST JUDGEMENT OF SUPREME COURT OF INDIA ON “BAIL NOT JAIL”

LATEST JUDGEMENT OF SUPREME COURT OF INDIA ON “BAIL NOT JAIL”

Yes,This is how the principle is enshrined in the constitution of India and Article 21 of the constitution of India enshrines this principle as “Right to Life”. But can we say that this principle is being followed in the courts of law and the accused persons who are languishing under trails in jails on the basis of false allegations and getting the most cherished right of the constitution of India. I feel the answer is NO, because the courts have without going into the correctness of the allegations of case, rather merely dismissing the same by just saying that it is matter of trail and at this stage the same cannot be taken into consideration or just that since the charge sheet has not been filed and therefore it is not the right stage to apply for bail.

Now if we critically analyze the bend of mind of a Judge who is dismissing the bail applications without seeing the gravity of the same if the same person gets acquitted or there is a lack of evidence at the trail stage. The Judge seems to be following the course of action which is easy and not taking any blame on himself. But still the question comes that are these accused persons getting the most cherished right and if yes then how many.

Perhaps the hard reality is the accused persons cannot except a Bail from lower court in any eventuality and they will have to come to Higher Courts to seek the bail and now the interesting question is when the Higher Courts are giving the Bail on same allegations and same grounds, then what is that stopping them to get the bail at the lower courts. The answer is clear that lower courts lack the gut feeling to take the responsibility to grant the bail despite having the same “Judicial Discretion” which the higher courts have.

Not commenting on any particular case or judge of the lower courts, rather this has become the fashion and we all face this difficulty for the clients. But the factors which the court must keep in mind before granting the bail applications as held by Hon’ble Supreme Court in “Sanjay Chandra vs CBI” speaking through G.S. Singhvi, H.L. Dattu wherein the Hon’ble Supreme Court has given the following factors which must be kept in mind while granting bail and the same factors must be kept in mind by any courts be it lower or higher courts. The factors to be considered as follows:

  1.  While granting the bail, the court has to keep in mind:-

The nature of accusations, the nature of the evidence in support thereof,

  1. The severity of the punishment which conviction will entail,The character, behaviour, means and standing of the accused,Circumstances which are peculiar to the accused,Reasonable possibility of securing the presence of the accused at the trial,Reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations.It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence”which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”
  2. Custody is not punitive in nature, but preventive, and must be opted only when the charges are serious and prima facie and not otherwise.
  3. Punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
  4. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:

“The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargementon bail from the Court.”

To enquire into the antecedents of a man who is applying for bail to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on bail.

  1. In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held:

“The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants.

The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence.Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

  1. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community.

A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police.

  1. The time to be taken in trial and they should not be subject to indefinite custody.

You Can Read Judgments & Grounds for Filing False Rape Cases in Supreme Court of India

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Transfer of Petition – An effective tool to meet the ends of Justice

Transfer of Petition – An effective tool to meet the ends of Justice

This is the provision inserted in Code of Civil Procedure under section 25 reads as under-

Power of Supreme Court to transfer suits, etc.

(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.

Scope

This section enables the plaintiff or the defendant or the respondent to get the transfer of the suit to their state instead of the other party’s state where the said suit is entertained by the High Court or any other court. This provision is invoked generally in the matrimonial cases, divorce cases or custody cases. The main objective of the Hon’ble Court is to meet the ends of the justice in any possible way. The transfer of petition can be filed in Hon’ble Supreme Court after filing of charge sheet by investigating agency in the court entertaining the said suit.

  • Impact of the Section 25 C.P.C. on society

There are more than 2 lakhs of cases of matrimonial matters including custody, divorce and domestic violence cases, our courts dealing in each court. As we know our society is influenced under corruption by the people whose motives are ulterior, therefore our legislature and courts have to keep in mind many aspects while administering justice to the victim. This is the main object of the said section to deliver the justice to the victim.

From the beginning people assume that the section of women is weaker as compared to section of men in the society, so it needs to be strengthened.  Same on this assumption Hon’ble Supreme Court is allowing the Transfer of Petition. According to recent judgements probability of getting relief by women is higher under this section.

  • Parameters Court Consider while allowing the Transfer of Petition
  1. Distance Travel to attend the proceedings.
  2. Reason how one is not capable to attend the proceedings.
  3. How Justice can be influenced at the place where proceedings of the suit are taking place.
  4. Merits of the case
  5. Allegations

Recent Judgements in favor of women

  1. Sneh Sweta Singh vs Manish Singh on 15 November, 2018, TP No.- 1147/2018

Mother is of 65 years old lady and suffering from several disease like Joints pain, fever, digestion problem etc. currently her mother is not keeping well with her health and she needs regular medical check-up and constant care in Bangalore. Petitioner’s daughter is 8 years old and is going to school in Bangalore. Both are totally depend on petitioner. In such circumstances she alone has to travel leaving her old and ailing mother and her 8 years old daughter behind a distance of 2200 Kms from Sarjapur in Bangalore to the State of Lucknow to contest the matrimonial suit filed by the respondent.  Therefore, court allow the transfer of petition.

  1. Poonam Aggarwal vs Saurabh Agggarwal on 7 September, 2018, TP No.- 703/2018
    Petition was allowed by the Hon’ble Court as the petitioner was the sole earner and her father was dependent on her as they were facing financial crisis.
  1. Boby Rani alias Babita Vs. Suresh Kumar, 2011(1) HLR 284
    Wife has not any source of income and she is 70 % handicapped. Her parents are not in a position to bear the traveling expenses as their economic condition is weak.
      1. In the case of Mona Aresh Goel vs Aresh Satya Goel on 21 March 2000, wherein the transfer petition was filed by the wife to transfer the divorce proceedings taken by the husband in Bombay to Delhi, where she stayed with her parents. The transfer petition avers that the wife had no independent income and that her parents were not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. She averred that she is twenty-two years old and cannot travel to and stay in Bombay alone for, there is no one in Bombay with whom she can stay. Hence the court allowed such a petition in these circumstances.
      2. A very poignant and logical judgment was observed in Premlata Singh v. Rita Singh wherein this Court had not transferred the proceedings but directed the husband to pay for traveling, lodging and boarding expenses of the wife and/or person accompanying her for each hearing. The said principle was also followed in Gana Saraswathi v. H. Raghu Prasad.
      3. In the case ofSanthini vs Vijaya Venkatesh on 9 October 2017, the court cited various cases. The court before reaching the final conclusions made a reference to the following cases, it made apt to refer to the decisions that have been noted in Krishna Veni Nagam.
      4. In Mona Aresh Goel ( as discussed above) the three-Judge Bench was dealing with the transfer of the matrimonial proceedings for divorce that was instituted by the husband in Bombay. The prayer of the wife was to transfer the case from Bombay to Delhi. The averment was made that the wife had no independent income and her parents were not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. That apart, various inconveniences were set forth and the husband chose not to appear in the Transfer Petition. The Court, considering the difficulties of the wife, transferred the case from Bombay to Delhi.
      5. In Lalita A. Ranga, the Court, taking note of the fact that the husband had not appeared and further appreciating the facts and circumstances of the case, thought it appropriate to transfer the petition so that the wife could contest the proceedings. Be it noted, the wife had a small child and she was at Jaipur and it was thought that it would be difficult for her to go to Bombay to contest the proceedings from time to time.
      6. In Deepas case, the stand of the wife was that she was unemployed and had no source of income and, on that basis, the prayer of transfer was allowed. In Archana Rastogi, the Court entertained the plea of transfer and held that the prayer for transfer of matrimonial proceedings taken by the husband in the Court of District Judge, Chandigarh to the Court of District Judge, Delhi deserved acceptance and, accordingly, transferred the case. Similarly, in Leena Mukherjee, the prayer for transfer was allowed.

  1. In Neelam Bhatia, the Court declined to transfer the case and directed the husband to bear the to-and-fro traveling expenses of the wife and one person accompanying her by train whenever she actually appeared before the Court.
  2. In Soma Choudhury, taking into consideration the difficulties of the wife, the proceedings for divorce were transferred from the Court of District Judge, South Tripura, Udaipur (Tripura) to the Family Court at Alipore (West Bengal).
  3. In Anju Ohri case, the Court, on the foundation of the convenience of the parties and the interest of justice, allowed the transfer petition preferred by the wife.
  4. In Vandana Sharma, the Court, taking note of the fact that the wife had two minor daughters and appreciating the difficulty on the said bedrock, thought it appropriate to transfer the case and, accordingly, so directed.

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Difference between writ & PIL?How to file a PIL in Supreme Court of India

how to file pil in supreme court of india and what is pil

PILs IN THE SUPREME COURT OF INDIA

PIL that is the “Public Interest Litigation” is directly filed by an individual or group of people in the Supreme Court of India and High Courts of India and judicial magistrate.

The concept of public interest litigation (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law. Before the 1980s, only the aggrieved party could approach the courts for justice.

After the emergency era, the high court reached out to the people, devising a means for any person of the public (or an NGO) to approach the court seeking legal remedy in cases where the public interest is at stake. R. Krishna Iyer was among the first judges to admit PILs in court N. Bhagwati and Justice V. Justice P.

Filing a PIL is not as cumbersome as a usual legal case; there have been instances when letters and telegrams addressed to the court have been taken up as PILs and heard.

A PIL is a petition that an individual or a non-government organisation or citizen groups, can file in the court seeking justice in an issue that has a larger public interest. It aims at giving common people access to the judiciary to obtain legal redress for a greater cause.

PIL is not defined in any statute. It is the outcome of judicial activism to take cognisance of a cause at the instance of any person even if it does not affect him personally but affects the public at large.

Difference between a writ and a PIL? How to file a PIL in Supreme Court of India

The name PIL has not been defined in the Constitution and is a more popular name for a Writ issued by the Supreme Court in the exercise of its original jurisdiction under Article 32 of the Constitution of India which is considered to be highly prerogative.

The following steps describe in brief the process how to file a PIL in Supreme Court of India.

  1. Firstly check about the subject on which one is thinking to file the PIL and read all the details of the provisions of the law and the violations of the law if any being done by the State or any statutory body. PIL can only be filed against any existing legal right or violation of the legal right by the Government.
  2. Secondly to make a detailed representation regarding the violations being made by the department concerned or the concerned authorities to take the remedial steps in this regard. If possible a reminder to the same may also be given.
  3. Thirdly to check any arbitrary law, irregularity in the enforcement of law and the class of people being affected by such law or the inactivity of the department concerned.
  4. Fourthly to collect all the relevant material, press reporting, documents etc in this regard and arrange them chronologically.
  5. Fifthly to draft a Writ petition under Article 32 of the Constitution of India citing the violations of the law, inactivity of the state and all other grounds. The format for PIL is given below which may be used. It is important to take the assistance or services of a trained legal hand for the purpose.
  6. Sixthly to prepare and file the PIL in Supreme Court of India before the Registry of the Supreme Court of India and get the matter listed before the court after due scrutiny. The matter is thereafter listed before the Court of hearing and orders accordingly.

 

How to seek bail in false 498A/406 IPC

How to seek bail in false 498A/406 IPC-Get free legal advice for 498A Cases

HOW TO SEEK BAIL IN FALSE 498A/406 IPC

Matrimonial cruelty is the cruelty to which women are subjected to, by her husband and his relatives. Cruelty in matrimonial terms is physical and mental torture caused by the actions of the husband and his relatives towards the wife.

To deal with matrimonial cruelty our constitution makers inserted section 498a in Indian Penal Code which reads as under:-

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 purpose 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

(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.

Also Read This:- How to seek Bail in False Rape Cases ?

THE EFFECTIVENESS OF IPC SECTION 498A ON SOCIETY

The object of our framers of the constitution is to safeguard the women from harassment at their matrimonial home. But some of the women make this law as a tool of extortion or we can say weapon to fulfil their desires and throw out their frustration as revenge by humiliating the husband and his relatives in front of society. Not every cruelty is matrimonial cruelty under 498a until there was a demand for dowry.

What a great irony is that, where our law has found on the principle that says, let a hundred guilty be acquitted, but one innocent should not be convicted, is it really the question of conviction or acquittal?

It’s all about the mental torture from which, one has to suffer due to false allegation put on him with an ulterior motive. As we can conclude this is due to the rigidity of our procedural law.

Nowadays courts also think on this negative step taken by women to trap the innocent people and passed several bail orders keeping in mind various aspects on valid grounds during the trial. The main concern of granting bails is the tenet principle that is, “ei incumbent probation quideficit, non quinegat” which means one is considered innocent unless proven to be guilty.

In recent judgement Social Action Forum for Manav Adhikar and another v. Union of India, Supreme Court modifies the earlier directions issued to prevent misuse of 498a in Rajesh Sharma v. UOI case.  Supreme Court removes welfare committees and safeguarded the husband and his relatives by inserting an anticipatory bail provision in dowry harassment cases.

Grounds considered by Courts while granting Bail in recent judgements

1. NITESH ARORA V. STATE GOVT. OF NCT DELHI, 18 JULY 2018, DELHI HIGH COURT

Petitioner had offered to return some of the dowry articles complainants claims to be and in the meantime files an application seeking permission to travel to the USA for an assignment. It is also mentioned that the visa of the petitioner is due to expire soon and its extension should be necessary for completion of assignment assigned to him by the employer, the visa would only be applied once he reached the USA.

2. LALIT SINGH NEGI V. STATE, 17 APRIL 2018, DELHI HIGH COURT

Court held that as all the Stridhan had returned no case of custodial interrogation is made out.

3. PARAG BANSAL & ORS. V. STATE, 12 JANUARY 2018, DELHI HIGH COURT

It is contended that FIR was lodged after filing an application u/s 125 Cr.P.C. It is also contended that all the allegations are false.  The complainant, who is well educated and is practising as an advocate and aware of her rights, has sought to improve upon her story, to falsely implicate the petitioners.

4.  Akshay Kumar V. The State Govt. Of NCT Delhi, 13 November 2017, Delhi High Court

Complainant demanded a sum of money to dissolve the marriage and threatened to harass and humiliate the petitioner and his family, in case they not give her said the amount. Complainant stayed with the petitioner only for two months after marriage. Court contended that there is no need for custodial interrogation and granted anticipatory bail with some conditions.

5. State V. Harshadrai Jani & Ors., 26 October 2018, Delhi District Court

There was no documentary proof such as MLC of the said allegations by the complainant. The court concluded that prosecution has failed to prove offence U/s 498A/406/420/34 IPC and section 3 and 7 Dowry Prohibition Act, 1961 against the accused persons beyond the reasonable doubt.

HOW TO SEEK BAIL IN FALSE 498A/406 IPC

Matrimonial cruelty is the cruelty to which women are subjected to, by her husband and his relatives. Cruelty in matrimonial terms is physical and mental torture caused by the actions of the husband and his relatives towards the wife.

To deal with matrimonial cruelty our constitution makers inserted section 498a in Indian Penal Code which reads as under:-

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 purpose 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

(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.

Also Read This:- How to seek Bail in False Rape Cases ?

THE EFFECTIVENESS OF IPC SECTION 498A ON SOCIETY

The object of our framers of the constitution is to safeguard the women from harassment at their matrimonial home. But some of the women make this law as a tool of extortion or we can say weapon to fulfil their desires and throw out their frustration as revenge by humiliating the husband and his relatives in front of society. Not every cruelty is matrimonial cruelty under 498a until there was a demand for dowry.

What a great irony is that, where our law has found on the principle that says, let a hundred guilty be acquitted, but one innocent should not be convicted, is it really the question of conviction or acquittal?

It’s all about the mental torture from which, one has to suffer due to false allegation put on him with an ulterior motive. As we can conclude this is due to the rigidity of our procedural law.

Nowadays courts also think on this negative step taken by women to trap the innocent people and passed several bail orders keeping in mind various aspects on valid grounds during the trial. The main concern of granting bails is the tenet principle that is, “ei incumbent probation quideficit, non quinegat” which means one is considered innocent unless proven to be guilty.

In recent judgement Social Action Forum for Manav Adhikar and another v. Union of India, Supreme Court modifies the earlier directions issued to prevent misuse of 498a in Rajesh Sharma v. UOI case.  Supreme Court removes welfare committees and safeguarded the husband and his relatives by inserting an anticipatory bail provision in dowry harassment cases.

Grounds considered by Courts while granting Bail in recent judgements

1. NITESH ARORA V. STATE GOVT. OF NCT DELHI, 18 JULY 2018, DELHI HIGH COURT

Petitioner had offered to return some of the dowry articles complainants claims to be and in the meantime files an application seeking permission to travel to the USA for an assignment. It is also mentioned that the visa of the petitioner is due to expire soon and its extension should be necessary for completion of assignment assigned to him by the employer, the visa would only be applied once he reached the USA.

2. LALIT SINGH NEGI V. STATE, 17 APRIL 2018, DELHI HIGH COURT

Court held that as all the Stridhan had returned no case of custodial interrogation is made out.

3. PARAG BANSAL & ORS. V. STATE, 12 JANUARY 2018, DELHI HIGH COURT

It is contended that FIR was lodged after filing an application u/s 125 Cr.P.C. It is also contended that all the allegations are false.  The complainant, who is well educated and is practising as an advocate and aware of her rights, has sought to improve upon her story, to falsely implicate the petitioners.

4.  Akshay Kumar V. The State Govt. Of NCT Delhi, 13 November 2017, Delhi High Court

Complainant demanded a sum of money to dissolve the marriage and threatened to harass and humiliate the petitioner and his family, in case they not give her said the amount. Complainant stayed with the petitioner only for two months after marriage. Court contended that there is no need for custodial interrogation and granted anticipatory bail with some conditions.

5. State V. Harshadrai Jani & Ors., 26 October 2018, Delhi District Court

There was no documentary proof such as MLC of the said allegations by the complainant. The court concluded that prosecution has failed to prove offence U/s 498A/406/420/34 IPC and section 3 and 7 Dowry Prohibition Act, 1961 against the accused persons beyond the reasonable doubt.

How to seek Bail in False Rape Cases?

How to get bail in false rape case-free legal advice

How To Get Bail In False Rape Case?

Rape, one of the most terrifying words which give goosebumps to both men and women. There were many laws for this heinous offence framed by the constitution makers. Some use these laws as a remedy for the mishap that takes place with the innocent but with the instance of time other use these remedies as a weapon of revenge or way to throw their frustration to led down the reputation of others. To safeguard the innocents from the people who use these laws as a weapon to disrepute the one in society there were many Bye-Laws and provisions of Bail and Anticipatory Bail in the Constitution under section 438 and 439 in Criminal Procedure Code.

Rape is defined u/s 375 I.P.C. reads as under:   

Rape: A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:

  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
  4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
  5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. With or without her consent, when she is under sixteen years of age. Explanation—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Physical relation on the pretext of marriage is not considered as the offence of rape. There are several grounds on which the accused can prove that the physical relation during live-in relationship does not amount to rape but it is the consensual sex. Consensual sex is the physical relation takes place between the couple with the consent of the women.

If once the live-in relationship is established then there are several factors become favorable for the accused. In rape cases there is no limitation of time for lodging F.I.R. supported by various judgements.

Misuse of Rape Laws

Courts noticed that nowadays with genuine cases of rape there are some female who filed false rape cases against an innocent person which led to loss of his reputation in a society and several other unfortunate consequences

There are some reasons which court finds in the cases they dealt with, why women filed false rape cases that is extortion by blackmailing, Pretext of marriage under frustration, revenge to humiliate one’s reputation etc. There are some by-laws and other provisions under the Constitution of India.

In false rape cases, the onus to prove his innocence lies on accused. As section 376 is Non-Bailable Offence, the accused can apply for bail in a Court of session under 438 and 439 Cr.P.C. If bail is rejected by the court than after change in circumstances the accused can apply again or after the filing of the charge sheet.

Recent Judgements of the Hon’ble Courts while granting Bail are as follows:-  

  1. Siddharam Sattlingapp.a Mhetre V. State of Maharashtra; (2011) SCC 694

Supreme Court laid down the following factors and parameters to be taken into consideration while dealing with anticipatory bail.

“112. The following factors and parameters can be taken    into consideration while dealing with the anticipatory bail:

  1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before the arrest is made;
  2. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

  1. The possibility of the accused’s likelihood to repeat similar or the other offences.
  2. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
  3. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

  1. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
  2. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
  3. In Akshay Manoj Jaisinghani v. The State of Maharashtra; Bail Application No. 2221/2016 wherein it was observed to the effect :

“ Only because two individuals are sexually involved with each other, it is not compulsory for them to marry. Initially, a boy and a girl genuinely may want to marry and are true to their emotions and establish sexual relationship, however, after some time, they may find that they are not mentally or physically compatible and one decides to withdraw from the relationship. Under such circumstances, nobody can compel these two persons to marry only because they had sexual relationship. It is necessary to have a healthy, objective and legal approach towards these incidents. There may be moral bonding between the two persons when they indulge into sexual activities with the promise to marry and it is also fact that ultimately women only can remain pregnant and therefore, she suffers more than the man. However, in law, this cannot be labeled in any manner as a rape.”

The applicant, in this case, was allowed to be released on bail subject to the conditions imposed.

  1. In Arif Iqbal @ Imran v. State; 2009 SCC Online Del 356. The observations therein are to the effect:

“Without expressing any view on the merits of the case, it is quite apparent from the contents of some of the letters placed by the petitioner on record that the prosecutrix was deeply in love with the petitioner. It is not in dispute that the petitioner had physical relations with the prosecutrix not at any strange place but at the residence of the prosecutrix itself. In her madness for love with the petitioner, prosecutrix went to the extent of administering intoxicating pills to her family members to induce them to go in fast and deep sleep and during which period the petitioner had sex with the prosecutrix. No doubt the prosecutrix has alleged that she allowed the petitioner to have sex with her because of the false promise of marriage extended by the petitioner but in my view mere false promise of marriage should not have prompted the prosecutrix to establish a physical relationship with the petitioner.”

  1. Shiva Shankar v. State of Karnataka; Crl. Appeal No. 504/2018

Hon’ble Supreme Court contend that where the accused and the prosecutrix had lived together like a married couple, and the sexual intercourse had lasted over a period of time, it was observed to the effect that especially in the face of the complainant’s own allegations of their living together, cannot be termed to be a case of rape.

  1. Bhushan Malik v. State (Government of NCT of Delhi); Bail Application no. 1545/2018; Delhi High Court

The Hon’ble Court observed that there are substantial improvements in version given by the prosecutrix in the supplementary statement given by her over the version given by her in the statement on which the subject FIR has been registered and the statement given before magistrate u/s 64 Cr.P.C. as also her version recorded in the MLC of the sexual Violence.

The Hon’ble Court held that where the medical examination was refused by the prosecutrix therein and the applicants were held entitled to be released on anticipatory bail u/s 438 Cr.P.C.

  1. Harish Kumar v. State 2010 (4) JCC 2371

The Hon’ble Court contends that a promise to marry which is later denied does not amount to offence of rape and it is a breach of promise and the complainant should seek a civil remedy.