Anticipatory Bail

ABA- (Anticipatory Bail Application)

Directions for grant of bail to person apprehending arrest (Section 438)

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;

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, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued 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).

STATE AMENDMENTS - West Bengal:

To sub-section (1) of section 438 of the principal Act, the following proviso shall be added:---

"Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven day’s notice to present its case.

[Vide West Bengal Act 47 of 1981, s. 3.]

West Bengal.--

For sub-section (1) of section 438, of the principal Act the following sub-sections shall be substituted, namely:-- (1)...

a. 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 that in the event of such arrest, he shall be released on bail: Provided that the mere fact that a person has applied to the High Court or the Court of Session for a direction under this section shall not, in the absence of any order by that Court, be a bar to the apprehension of such person, or the detention of such person in custody, by an officer-in-charge of a police station.

b. The High Court or the Court of Session, as the case may be, shall dispose of an application for a direction under this sub-section within thirty days of the date of such application: Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven days notice to present its case.

c. If any person is arrested and detained in custody by an officer-in-charge of a police station before the disposal of the application of such person for a direction under this sub-section, the release of such person on bail by a Court having jurisdiction, pending such disposal, shall be subject to the provisions of section 437.

(1A) The provisions of sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgment, decree or order of any Court, tribunal or other authority.".

[Vide West Bengal Act 25 of 1990, s. 3.]

STATE AMENDMENT – Orissa:

Amendment of section 438.--In section 438 of the Code of Criminal Procedure, 1973 (2 of 1974), to sub-section (1), the following proviso shall be added, namely:-

"Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State notice to present its case.":

[Vide Orissa Act 11 of 1988, s. 2]

STATE AMENDMENT – Maharashtra:

Substitution of section 438 of Act 2 of 1974.--For section 438 of the Code of Criminal Procedure, 1973 (2 of 1974), in its application to the State of Maharashtra, the following section shall be substituted, namely: 438. Direction for giant 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 that in the event of such arrest, he shall be released on bail; and High Court may, after taking into consideration, inter alia, the following factors:--

i. the nature and gravity or seriousness of the accusation as apprehended by the applicant;

ii. the antecedents of the applicant including the fact as to whether he has, on conviction by a Court previously undergone imprisonment for a term in respect of any cognizable offence;

iii. the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested, and

iv. The possibility of the applicant, if granted anticipatory bail, fleeing from justice, either reject the application forth with or issue an interim order for the grant of anticipatory bail: Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

2. Where the High Court or, as the case may be, the Court of Session, considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1), the Court shall indicate therein the date, on which the application for grant of, anticipatory bail shall be finally heard for passing on order thereon, as the Court may deem fit; and if the Court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely:--

i. that the applicant shall make himself available for interrogation by a police officer as and when required;

ii. that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation against him so as to dissuade him from disclosing such facts to the Court or to any police officer;

iii. that the applicant shall not leave India without the previous permission of the Court; and

iv. such other conditions as may be imposed under sub-section (3) of section 437 as if the bail was granted under that section.

3. Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice, being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Commissioner of Police, or as the case may be, the concerned Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

4. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of 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.

5. On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order made under sub-section (1).]

[Vide Maharashtra Act 24 of 1993, s. 2]

STATE AMENDMENT – Uttar Pradesh:

Section 438 of the said Code shall be omitted. [Vide Uttar Pradesh Act 16 of 1976, s. 9]

Section 439.   Special powers of High Court or Court of Session regarding bail.

1. A High Court or Court of Session may direct,--

a. that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

b. that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

2. A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

STATE AMENDMENT – Assam:

439-A. Power to grant bail.--(1) Notwithstanding anything contained in this Code, no person—

a. who, being accused or suspected of committing an offence under any of the following Sections, namely, ---Sections 120B, 121, 121A, 122, 123, 124A, 153A, 302, 303, 304, 307, 326, 333, 363, 364, 365, 367, 368, 392, 394, 395, 396, 399, 412, 431, 436, 449 and 450 of the Indian Penal Code, 1860, Sections 3, 4, 5 and 6 of the Indian Explosive Substances Act, 1908, and Sections 25,26, 27, 28, 29, 30 and 31 of the Arms Act, 1959, is arrested or appears or is brought before a court; or

b. who, having any reason to believe that he may be arrested on an accusation of committing an offence as specified in clause (a), has applied to the High Court or the Court of Sessions for a direction for his release on bail in the event of his arrest, shall be released on bail or as the case may be, directed to be released on bail, except on one or more of the following grounds, namely: --

i. that the Court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in clause (a);

ii. that such person is under the age of sixteen years or a woman or a sick or an infirm person;

iii. that the court including the High Court or the Court of Sessions for reasons to be recorded in writing is satisfied that there are exceptional and sufficient grounds to release or direct the release of the accused on bail."

[Vide Assam Act 3 of 1984, s. 5.]

Section 440.   Amount of bond and reduction thereof. 

1. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.

The High Court or the Court of Session may direct that the bail required by a police officer or Magistrate be reduced.

Divorce, legally?

Divorce in India, Legally?

Divorce, also known as dissolution of marriage, is the process of ending a marriage or marital partnership. 

Divorce implies the re-organisation or cancellation of legal responsibilities and obligations of marriage, therefore severing the bonds of matrimony between a married couple under the country’s or state’s unique rule of law.

A divorce is a traumatic experience to go through, be it any stage of life. It can be a long-winded and costly affair with respect to the divorce process in India. 

This article provides a step-by-step procedure of how to file a Divorce in India!

The rules of divorce in India are connected to religion and in this article, how to file a divorce in India is spoken about. 

1. Hindus, Sikhs, Buddhists, and Jains are governed by the Hindu Marriage Act, 1955. 

2. Muslims are governed by the Dissolution of Muslim Marriages Act, 1939. 

3. Parsis are governed by the Parsi Marriage and Divorce Act, 1936. 

4. Christians by the Indian Divorce Act, 1869 

5. Marriages between two religions are governed by the Special Marriage Act, 1956. 

The divorce in India started with the Hindu Marriage Act, 1955. Under this act, both the husband and wife have been given a right to get their marriage dissolved on more than one ground, specifically with regards to Section 13. 

How to file a divorce in India? 

Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provide for divorce of Mutual Consent. Please note for worst-case scenarios, if the concept of consented divorce is not feasible then ‘Contested Divorce’ is the last resort, this is when the other party is not agreeing for divorce. 

There are conditions that have to be followed and the procedure for Divorce in India falls under Section 13B of the Hindu Marriage Act, and they are as follows: 

1. The partners have been living separately for a minimum period of a year 

2. They are unable to reconcile their differences and live together 

3. The partners have mutually agreed that the marriage has come to an end, and must be dissolved. 

A mutually consented divorce can be filed. 

The divorce process in India begins with the filing of a divorce petition. 

Now, if your questions are: 

How to file a divorce petition? 

The process:

The entire process of filing a divorce starts with the divorce petition by the parties associated with the matter. The divorce process and notice of the same are served to each stakeholder. 

According to the Hindu Marriage Act, 1955, a petition filed under ‘mutual divorce’ can be carried forward if the two parties have decided to bid adieu and part their ways, legally. 

If not, and one member wishes to part their ways with another (who isn’t willing to give consent) – it falls under ‘Contested Divorce’. 

Produce a divorce notice to your spouse, this is towards clarifying the emotions, a legal and binding platform to initiate your thoughts on discontinuing your marriage. 

Legal notice for divorce will bring clarity to the future of the relationship. The legal notice is towards the communication of current feelings and is a formal one to break the marriage. 

How much time does it take to get a Divorce in India?

Within six months, divorce by mutual consent can be achieved, although no petition in such a case can be submitted within the first year of marriage. Between the first and second motions, there must be a six-month break. In rare situations, the court may waive the cooling-off period. So, in the event of mutual agreement divorce, it normally takes 18-24 months.

Because of the complexity and likelihood that either spouse might remarry, the duration of a contentious divorce is longer, ranging from three to five years.

The procedure for mutual divorce in India is as below: 

Step 1: Petition to file for a divorce

If you are wondering ‘How to get a divorce in India from wife’ or ‘How to get a divorce from husband’ – it starts with a joint petition for disbanding the marriage. It will be presented to the family court by the parties concerned, stating that they are unable to follow the conditions and they have come to terms to part their ways. 

The parties sign the petition. 

Step 2: The parties must appear before the court

After the procedure has been initiated, the parties appear before the court and the entity shall do its due diligence. The court may try to reconcile the spouses, if in vain, the divorce process proceeds. 

Step 3: Record statements under oath 

After the petition is scrutinized and satisfied by the court, the statements of all concerned parties will be recorded under oath.

Step 4: The first motion will be passed 

The statements are recorded, an order is passed, and six months of time is provided for the second motion to be passed. 

Step 5: Final hearing of the petition 

After the parties appear for the second motion, and if everything is a smooth sail, they can proceed with the final hearings of the case. 

Step 6: Verdict on the Divorce

When it comes to a mutual divorce, both parties have given consent, and there will not be any differences regarding alimony, custody of children, maintenance, property, etc 

A harmonious agreement where the spouses are on the same page is important to dissolve the marriage. If the court is satisfied after hearing the allegations and if there is no means of reconciliation and cohabitation, the verdict shall pass on as ‘marriage dissolved’. 

If you are concerned about ‘how to file a divorce online’ – it is feasible. Lawyers, presenting your arguments in Family Court, and recurring meetings to stick to the process is crucial. 

The procedure for Contested Divorce in India is as below: 

Step 1: The petition is filed by the husband or wife:

As previously indicated, in a contentious divorce, only one side is necessary to contact a lawyer. The husband or wife seeking divorce would be expected to clarify the facts, and the lawyer would be obliged to create the petition based on the facts and circumstances as stated and narrated by the husband or wife requesting divorce.

Step 2: The court issues a summons and asks the other spouse to respond:

Once the petition has been prepared and all formalities have been fulfilled, it would be filed before the appropriate family court, depending upon the jurisdiction.

Step 3: The court may advise that the parties reconcile:

On the first day of the hearing, the court would examine the petition and hear the lawyer making the petition’s opening arguments (concerning the claims and reasons).

Step 4: Witnesses and evidence are examined and cross-examined:

Once the court is satisfied that the case should go to adjudication, it will issue a notice to be served on the opposing party. After then, the other party would receive a copy of the petition and the notice, and he or she would be required to attend in court with their counsel on the next hearing date. The opposing party would be required to respond to the divorce petition as well as any further applications that may be filed.

Step 5: Both sides attorneys make their last arguments:

To begin, the Court will attempt to mediate the dispute between the parties and may order them to attend Mediation in order to achieve an acceptable agreement. After appearing in front of a mediator for mediation, if the mediation is unsuccessful or fruitless, the court will proceed with the divorce procedures.

Step 6: The court issues a divorce decree:

The court would next proceed to formulate issues and record evidence in the case. Both parties would have to present evidence, be cross-examined, and provide supporting witnesses. This is the most important component of the entire process since it determines the case’s outcome.

During the discussions between both parties, there are three aspects one must consider to reach a consensus: 

i) Alimony and maintenance issues. As per law, there is no minimum or maximum amount. It could be no money or any money. 

ii) Custody of their young ones is a crucial aspect the spouses must consider. This must be spoken to amongst the stakeholders and they must come to a consensus on shared or exclusive custody of the children. 

iii) Property is the next issue. Husbands and wives should integrate their assets and distribute them accordingly. This includes movable and immovable property. It must be agreed by both parties – even to the minute of the decisions – which includes bank account(s). 

Documents that are required to successfully continue the divorce process:

1. Address proof of the spouse
2. Certificate of marriage
3. Passport size photograph (4) of husband and wife
4. Evidence to support the claim that husband and wife have been living apart for more than one year.
5. Evidence to support the failed attempts to pacify each other and reconcile the marriage.
6. Income tax statements for 3 years
7. Professional details
8. Family background details
9. Details of properties that are owned by both parties

- Adv. Sunita Nagpure

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Civil Suit Stages

Stages of a Civil Suit

The Civil Suit is basically a dispute which arises between two people or two organisations wherein a subject for dispute is limited to monetary transaction and dispute related to immovable property. 

The Civil Suit, if it is personal in nature than it is governed under Civil Procedure Code and if it is related to business transaction then Commercial Court Act also plays a great role to set out the procedure. The Parties in the Civil Suit are addressed as Plaintiff and Defendant.

Broadly, a civil suit passes through the following five stages:

• Institution of a Civil Suit (Plaint, Written Statement, Replication, etc.)

• Framing of issues.

• Summoning and attendance of witnesses.

• Hearing of Suit and Examination of Witness.

• Decree/Order and the Judgment.

STAGES OF CIVIL SUIT

There are total 18 stages in a Civil Suit which are mentioned herein below:-

1. Plaint

The document in which the fact of the case is mentioned that document is known as Plaint in legal world. The entire Civil Suit is based on Plaint and the Plaint is starting point or the starting stage for all the Civil Suit. Order VII deals with the contents of Plaint and some of the points mentioned under Order VII is mentioned herein below:-

• Particulars

• Name of the Court

• Details of the Party

• Facts of the Dispute involved between the party

• Relief Sort

• Jurisdiction

• The Documents on which the party is relying upon.

2. Summons

After a Plaint is filed the Court may either accept the Plaint or they may reject the Plaint if the Plaint is accepted the Court may call the Party i.e. Defendant against whom the dispute is filed and Court calls party by issuing Summon. Defendant to whom the summons is issued may appear in person or through the legal representative. If the Summons are addressed within the jurisdiction of the Court than the same is addressed under Section 27 of the Code and if the Defendant doesn’t reside in the jurisdiction of the Court but the same resides in the same Country than the Summons are addressed under Section 28 of the Code but if the Defendant is residing outside the Country than the Summons are addressed under Section 29 of the Code. The Summons is also addressed when Plaintiff or Defendants want to produce a witness in the Court, the procedure relating for calling for witness is mentioned under Section 31 of the Code. The procedure for the Service of Summons is mentioned under Order V of the Code.

3. Appearance of the Party

The Party to whom summon is addressed needs to be present before the concerned court and if the person failed to appear before the concerned Court than as per Order V rule 20 an Ex-parte order is passed by the Concerned Court. If both parties are not present on the concerned date thrn the court after giving due chance ay dismiss the matter.

4. Interlocutory Proceeding

Everyone knows that Suit is a Long process as it has many steps before passing Judgment so before starting the stages of Suit sometime the Court has to intervene in the matter to maintain the position as it prevailed. Such Intervention is known as “STATUS QUO”. The Plaintiff can ask for Status Quo order by filing Notice of Motion in the City Civil Court or by filling Interim Application in respective High Court. Following intervention matter are entertain by the Civil Court:-

• Temporary Injunction (order 39)

• Appointment of Court Receiver (order 40)

• Appointment of Court Commissioner(order 26)

• Arrest and Attachment before Judgment (order 38)

5. Written Statement

In the simple language Written Statement is a Document in which the Defendant mentions his/her side of facts of the case and mentions his defence to the Plaint. Order VIII of the code deal with Written Statement. Before Amendment in 2002, there was no limitation period for filing the Written Statement but after the amendment, it is mandatory to file Written Statement within 90 days, after the limitation period is expired it is at the discretion of the Court whether to accept the Written Statement. Under this discretion, the Court will give additional days to file Written Statement but those days won’t exceed 90 days.

6. Examination of Party

After the Written Statement is filed the Court may ask the parties whether they admit the allegation or they deny the allegations pressed by the Plaintiff and such acceptance or denial should be recorded.

7. Framing of Issues

The Court after the Suit is filed and after the Written Statement is filed by the Defendant then the Court may ask the parties to produce Draft Issues and after examining the draft issues the Court may frame Final issues. Order XIV of code deal with Framing of Issues.

8. List of Document relied by the Party

After the Framing of Issue, the Court will ask the Parties to submit a List of Documents on which they are relying upon. The parties submit the list in the form of Affidavit.

9. Discovery and Inspection

After the Document is produced in the Court the Party can apply for inspection of Document. Order XI of the code deals with the Discovery and Inspection of documents. After taking leave from the court the parties can Inspect the Document.

10. Admission and Denial of Document

After the Party has ascertained the Document they may either Admit the Document or they may deny the Document. The Admission and Denial of the Documents are dealt under Order XII of the code.

11. Production of Documents

After the List of Document is relied upon by the Party and after Admission and denial of the Document, the next stage is to produce the Document in the Court. The Party has to submit all original documents in the concerned court. Order XIII of code deals with the production of the Documents.

12. Hearing and Cross Examination of the Witness (Order XVIII)

After the Production of Document, the next stage of a civil suit is hearing of suits and examination of witnesses commence. The first right to begin is of the plaintiff. The plaintiff has to submit the evidence that was earlier marked if any evidence was not marked earlier then it will not be considered by the court. And the defendant’s advocate will cross-examine the plaintiff and also to the witnesses who are from the plaintiff’s side. And the defendant also presents his side of the story supported by his witnesses and evidence from his side and the plaintiff advocate also cross-examined the defendant.

13. Argument

As soon as the stage of the hearing of suits and examination of witnesses is over then the suit is kept for the next stage i.e. argument. Once the evidence has been submitted and cross-examination is conducted by both parties, then both sides are allowed to present a summary of the case and evidence to the judge in the final session.

14. Judgment

After the concerned court has heard the matter the Court will pass Judgment/Decree. The provision related to Judgment and Decree is in Section 33 read with Order XX of the Code.

15. Appeal, Review and Revision

After the Judgment is pronounced and if the concerned party are not satisfied with the Judgment/Decree passed than they can either apply for Review (Section 114 read with Order XLVII) within Thirty Days from the date of pronouncement of Judgment/Decree or the aggrieved party can apply for Revision (Section 115) to the higher court within thirty days of pronouncement of Judgment, or the aggrieved party can also go for an Appeal (section 96 to 110 along with Order XLI to XLV) to the Higher Court within 60 or 90 days from the pronouncement of the Judgment/ Decree.

16. Execution of the Decree

In this stage, decree-holder compels the judgment-debtor to out the mandate of the decree or decree or order as the case may be. It is the process by which a decree-holder recovers the fruits of the judgment. The execution is complete when judgment creditor or decree-holder gets money or other thing awarded to him by judgment, decree, or order.

The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

17. Appeal, Review, Revision 

A. Appeal :-

An appeal may be an appeal from order or an appeal from decree. All orders are not appealable and complete discretion of the appealable order has been given in order 43 of the code of Civil Procedure Code. The appeal has to be preferred within prescribed limitation period before the appellate court. The limitation period for appeal to High Court is 90 days and appeal to District Court is 30 days. If the period of limitation is expired, then application for condonation of delay also is required to be moved.

B. Review :- 

The right of review is having very limited scope under the Civil Procedure Code

A review application is maintainable only when the following conditions are satisfied,

1. If involves a decree or order from which no appeal is allowed or if allowed it is not preferred.

2. The appellant was aggrieved, on the ground, that because of the discovery of a new and important matter of evidence, which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time of decree or on account of some mistake, apparently on the face of the record, or for any sufficient reason, desires to obtain a review of such decree. The other side will be granted an opportunity to be heard, when any review application has been granted.

C. Revision :- 

The High Court in its revision jurisdiction can interfere in any case decided by subordinate court under certain circumstances.

The High Court may call for the record of any case which has been decided

by subordinate court and in which no appeal lies, if such subordinate court appears -

1. To have exercised, a jurisdiction not vested in it by law, or 

2. To have failed to exercise a jurisdiction so vested, or

3. To have acted in exercise of its jurisdiction illegally; or with material irregularity.

18. Execution of Decree (Order 21) :- 

Execution is the medium by which a decree- holder compels the judgment-debtor to carry out the mandate of the decree or order as the case may be. It enables the decree-holder to recover the fruits of the judgment. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by judgment, decree or order. 

-  Adv. Sunita Nagpure

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