IN THE COURT OF SH. XXXXXXX XXXXX DISTRICT & SESSION JUDGE,

ROHINI COURT, DELHI.

BAIL APPLICATION No. XXXX OF 2018.

IN THE MATTER OF : -

XXXXXX

S/o XXXXXX

Address : APPLICANT

VERSUS

STATE : RESPONDENT

F.I.R. No .: XXX

U/s: XXXX

P.S.: XXX

IN THE COURT OF DISTRICT & SESSION JUDGE,

ROHINI COURT, DELHI.

BAIL APPLICATION No. ________ OF 2018.

IN THE MATTER OF : -

XXXXX

Address. : APPLICANT

VERSUS

STATE : RESPONDENT

F.I.R. No .: XXX/XXXX

U/s: XXX/XX/XXX IPC

P.S.: XXXXX

ANTICIPATORY BAIL APPLICATION UNDER SECTION 438 OF CR.P.C. ON BEHALF OF APPLICANT NAMELY XXXXX IN FIR NO.XXX/XXXX U/S 498A/406/34 OF IPC REGISTERED WITH THE POLICE STATION BEGAMPUR, DELHI.

MAY IT PLEASE TO YOUR HONOUR :-

1. That the applicant is peace loving and law abiding citizen of India hence he is entitled to the protection of his life and personal liberty enshrined under Article 21 of the Constitution of India.

2. That the applicant is innocent and is not associated with the said offence in any manner whatsoever. It is submitted that the applicant who has been named in the FIR and has been falsely implicated in the said case.

3. That this application on behalf of the applicant for grant of bail in FIR no. XXX/XXXX under Section 498A/306/34 of IPC, registered with the Police Station XXXXX, Delhi.

4. That the brief facts of the prosecution is as under :-

A. That the applicant has been sent the notice under Section 41A CrPC by the IO in the aforesaid case for joining the investigation on (DATE).

B. That it is respectfully submitted that applicant is permanent resident of xxxxx, Punjab.

C. That the aforesaid FIR has been registered on the basis of the complaint lodged by complainant namely Ms. ______. It is submitted that applicant has been falsely implicated by the complainant by ulterior motive.

D. That as alleged in the FIR no case of cruelty or any demand of dowry has ever been made by the applicant.

E. That as alleged in the FIR the applicant never made any demand for dowry or never troubled the complainant on account of bringing insufficient dowry. It is further submitted that as per the FIR no demand of dowry was made by the applicant.

F. That police officials have falsely implicated the accused persons and the applicant for no plausible reason.

5. That the applicant is always available to submit himself to the custody of the Hon’ble Court at any point of time if the Hon’ble Court reached the opinion that the custody of the applicant is necessary.

6. That it may not be out of context to point out that the Hon’ble Supreme Court in the matter of Sanjay Chandra Vs. CBI (2012) 1 SCC 40 has again upheld the fundamental principle of criminal jurisprudence “bail and not jail” and has observed that time and again has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.

7. That, it is the basic criminal jurisprudence that the applicant is considered innocent until held guilty.

8. That in the case of State of Rajasthan vs. Balchand, (1977) 4 SCC 308, Hon’ble Supreme Court opined:

“That 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 enlargement n bail from the Court. We do not intend to be exhaustive but only illustrative. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavorable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at baren once every fortnight.”

9. That in the case of Siddharam Satlingoppa Meheto Vs. State of Maharashtra (2011) 1 SCC 694 Hon’ble Court observed that:

“Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.”

10. In Bhadresh Bipinbhai Sheth Vs. State of Gujarat & Anr.; 2015 (8) JT 125, 2015 (9) SCALE 403; The Supreme Court has said that custodial interrogation should be avoided if the accused cooperates in the probe, as "a great ignominy, humiliation and disgrace is attached to arrest".

"In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest.

"Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage,"

11. Because while dealing with anticipatory bail plea, the gravity of charge and the exact role of the accused must be properly comprehended and before arrest, the officer must record valid reasons for the arrest in the case diary.

12. Because there is no requirement that the accused must make out a 'special case' for exercise of power to grant anticipatory bail.

13. Because a person seeking anticipatory bail is still a free man entitled to the presumption of innocence," it said. The court, however, made it clear that "no inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail.

14. Because while dealing with anticipatory bail, the nature and gravity of the accusation and the exact role of the accused must be properly comprehended before his arrest.

15. Because the possibility of the applicant to flee from justice, the possibility of the accused's likelihood to repeat similar or other offences," must also be considered.

16. Because in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the applicant. The primary purposes of bail in a criminal case are to relieve the applicant of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the applicant constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.

17. The applicant has got clean antecedents and also has got no influence over the prosecution witnesses and there is no likelihood of tempering with the same.

18. That the applicant is ready to furnish the sound surety to the entire satisfaction of this Hon’ble court.

19. That it may be submitted that the applicant has a complete clean record. The applicant has never been convicted in past in any case. It cannot be construed under any circumstances that the applicant has bad record which suggest that he is likely to commit, similar or serious offences while on bail.

20. That the applicant belongs to respectable family in the society. The complainant is hell bent to humiliate and harass the applicant and has filed a totally false complaint against the applicant and his family member on the strength of false story.

21. That applicant has deep roots in the society and commands social respect and the attempt of the complainant is to disgrace by arresting the applicant.

22. That the necessity for granting anticipatory bail in this case arises mainly because the said FIR is lodged on the strength of false story. The applicant has been implicated in a false case for the purpose of disgracing him and for getting him detained in jail for some days as a pressure tactic to yield to their illegal demands from the family of the complainant. There seems no justification to require the applicant first to submit to custody, remain in prison for some days and then apply for bail because there is absolutely no ground for assuming or presuming that the applicant will either abscond, misuse his liberty or temper with the evidence after granting the bail.

23. That in the above facts and circumstances there is absolutely no need for the I.O. to arrest the applicant and this Hon’ble Court must protect the applicant to save him from unnecessary humiliation in the eyes of his near and dear ones and even in the eyes of public at large as the applicant holds a respectable position in the society. The applicant is permanent resident of Punjab since childhood. It is not only the applicant, but his family members who will suffer if the applicant detain in the jail for no fault of the applicant.

24. That the Hon’ble supreme court in “Narinderjit Singh Sahni Vs. Union of India” (2002 (2) SCC 210 restated the object of section 438 Cr.P.C. as the object being to relieve a person form unnecessary harassment or disgrace and it is granted when the court is otherwise convinced that there is no likelihood of misuse of liberty granted since he would neither abscond nor take such step so as to avoid due process of law.

25. That the Constitution Bench Judgment of Hon’ble Supreme Court of India in the case of Gurbaksh Singh Sibbia and Others vs. State of Punjab has held that:

“The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualized under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the 'touch' or confinement contemplated by Section 46 of the Code. The essence of this provision is brought out in the following manner:

“26. We find a great deal of substance in Mr Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.”

26. That there is no evidence whatsoever against the applicant. That as a matter of fact, applicant is implicated in the aforesaid case on a concocted and false story.

27. That the applicant has not committed any offence as alleged by the complainant/prosecution.

28. That the falsity of the present case is apparent from the bare perusal of contents of F.I.R.

29. That the applicant undertakes that he shall regularly join the investigation in present F.I.R. whenever and wherever the concerned I.O. called the applicant.

30. That the applicant will never misuse the bail in future and not tamper with the evidence of the aforesaid case during trial.

31. That the applicant is permanent resident of above mentioned address and there is no chance of her absconding and fleeing from justice.

32. That the applicant undertakes to furnish sound surety to the satisfaction of this Hon’ble Court.

33. That the applicant undertakes to abide by all terms and conditions, if any, imposed by this Hon’ble Court while granting the bail to him.

34. That the applicant craves leave of this Hon’ble Court to raise any other or further ground at the time of hearing of the bail application.

PRAYER :-

On the aforesaid facts and circumstances the applicant most respectfully prays that this Hon’ble Court may graciously be pleased to order: -

(a). Grant anticipatory bail to the applicant and to release the applicant on bail in the event of arrest in the interest of justice and on any terms and condition that the Hon’ble Court may deem fit and proper.

(b). Any other directions / order the Court may like in the interest of justice.