Last Updated on February 20, 2019 by Legalseva.net
The fear of false 498A cases is back as the larger bench has refused to refer matter to Family Welfare Committee and this gives discretion back to police to make immediate arrests.
Means , you can be arrested any time. When I say any time, right after the registration of FIR unless police gives notice under Sec 41 A of CrPC and ask you to join investigation.
498A Criminal case is rarely registered without 406 IPC section. So watch out for both of these criminal sections.
Also Read- 498 A NOW AND THEN.
Let’s have a bare reading of these two sections first:
Section 405 Describes Criminal Breach of Trust
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.
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Explanations
- A person, being an employer of an establishment whether exempted under section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952) or not who deducts the employees’ contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
- A person, being an employer, who deducts the employees contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and administered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Also Read- IF PROCLAIMED OFFENDER OR PO BY COURT, THEN READ THIS.
Illustrations
- A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriates them to his own use. A has committed criminal breach of trust.
- A is a warehouse-keeper, Z, going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse-room. A dishonestly sells the goods. A has committed criminal breach of trust.
- A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z’ direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company’ paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.
- But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z’ advantage to hold shares in the Bank of Bengal, disobeys Z’ directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company’ paper, here, thought Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.
- A, a revenue-officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.
- A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.
Also Read- COMPROMISE QUASHING IN HIGH COURT CHANDIGARH
IPC Section 406:- Punishment for criminal breach of trust
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.
Section 498A:- 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.
Also Read- QUASHING OF CRIMINAL CASE & FIR
Explanations
For the purposes of this section, “cruelty” means:
- 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
- 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.
Now what makes 498A and 406 Cases dreadful is that both these sections are non-bailable and provides police powers to make immediate arrests.
No matter whatever are the merits of the case /FIR, the first stage is always of seeking Anticipatory Bail in 498A/406 IPC Cases .
Don’t be worried if all your family member’s names are mentioned in the FIR because that’s what we call a typical 406 & 498 A IPC FIR.
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There are many 498A/406 IPC Criminal lawyers in Chandigarh Panchkula Mohali Zirakpur Kharar Derabassi New Chandigarh Mullanpur who will guide clients to go for quashing of FIR from Punjab and Haryana High Court at Chandigarh but that is not appropriate at this stage.
The best and expert criminal lawyers of family matters always suggest Anticipatory /Interim Bail before Quashing of FIR from High Court Chandigarh and this is my stand to.
Let’s have the provision of Anticipatory/Interim Bail for 498A/406 IPC under CrPC now :
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Section 438 – Direction for grant of bail to person apprehending arrest
(1) Where any person has reason to believe that he may be arrested on 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 that Court may, after taking into consideration, inter-alia, the following factors, namely-
- the nature and gravity of the accusation;
- the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
- the possibility of the applicant to flee from justice; and.
- where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
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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.
1A. 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 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,
1B. 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.
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2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-
1. a condition that the person shall make himself available for interrogation by a police officer as and when required;
2. 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;
3. a condition that the person shall not leave India without the previous permission of the Court;
4. such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.
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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 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).
4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.
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How to Apply for Anticipatory Bail / Interim Bail in 498A & 406 IPC Cases ?
1 First and foremost, get the FIR copy . Get it online or from the court of ilaqua Magistrate or from the police station but be a little careful and avoid arrest at any cost.
2 Engage a Professional, experienced criminal lawyer for your case and there isn’t any substitute for professional advice , do remember. If arrested, it will take a weeks time for you to get out and at a double cost . If matter goes to High Court Chandigarh of Punjab and Haryana, then multiply it for own self.
You you will be able to make out more money only if you stay outside jail and not inside, my advice. So don’t be hesitant to pay fees to a good criminal lawyer.
3 Ask your Advocate/Lawyer to file Anticipatory Bail along with FIR and Aadhaar copy as soon as possible in the Sessions court of your District. Once the case is filed , notices are issued for the reply of State. 99 percent of the times, Bail is never given on the first date.
4 State will appear and file its reply where the reasons of not granting the bail to the accused will be listed under Sections 406/498A IPC.
Also Read- ANTICIPATORY BAIL FROM HIGH COURT
5 The case then gets listed for the arguments stage where the final outcome of the bail application is decided or reserved for orders.
6 Once the status of bail application is known to you, apply for the orders immediately else police may make a arrest.
7 In case of dismissal of Anticipatory Bail application in Sessions Court, one may apply immediately to the Punjab and Haryana High Court at Chandigarh Immediately.
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Few things to consider while applying for Anticipatory bail application in 406 & 498A IPC are :
1 It is not always possible for everyone to get bail in 498A & 406 case as a lot depends on your case individually. Each FIR is distinct so as criminal case.
2 Each case has its own merits. Number of years of marriage , members in family, report of violence , magnitude of economic dispute, social background and most important conduct of parties in court.
3 Conduct of parties is the most important thing inside court when Anticipatory/Interim Bail applications are being heard. Couples go on ranting about each other while the judge observes minutest of detail about husband and wife.
4 Be prepared with list of items shared during marriage as court can ask it for any time and brief your lawyer properly about all the incidents during marriage.
5 Usually all the Bail applications are to be decided within a week as per SC (Supreme Court) directions . So don’t forget to seek interim bail meanwhile your bail application stays pending.
Also Read- CALCULATING MAINTENANCE DURING DIVORCE
6 It is not necessary that Bail applications are to be filed after registration of FIR . You can seek pre-arrest/ blanket bail before registration of FIR and police will give you a week’s time to join the investigation before making any arrest.
7 Your Anticipatory Bail is valid through the proceedings until chargesheet is being filed . After chargesheet, you need to seek regular bail from the court. Yes once again.
8 Remember apart from seeking Interim/Anticipatory bail, you need to have surety also arranged for the bail bonds as per the amount decided by court. Many couple ignore this fact and come to court without any preparation and thus get arrested for non-compliance even though the bail was granted in the first place.
9 Anticipatory /Interim Bail in 498A and 406 IPC cases can also stand cancelled if any of the conditions imposed during bail is non-fulfilled. Be in touch with the IO (Investigation Officer) of the case and visit police station as an when requested.
10 There is no bar on you to approach High Court Chandigarh for quashing of the FIR under sections 406 and 498A IPC but highly recommended to first secure bail and then go for quashing.
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11 Yes the complainant can challenge if the bail is granted in Punjab and Haryana High Court and pray for cancellation of the FIR.
12 Both 406 & 498A IPC provides punishment of three years imprisonment and are non- bailable offences which means immediate arrests.
13 Ideally 498A cases are filed before 7 years from marriage but there can be a situation where registration of FIR can be done after 7/10/15 years depending on the facts of a case.
14 Courts while granting anticipatory/interim bail can’t impose maintenance amount on the applicant as it is against the law.
15 Finally fees for applying Anticipatory/Interim Bail varies whether applying in Sessions Court of Chandigarh Panchkula Mohali or Punjab and Haryana High Court. An expert 498A/406 IPC lawyer charges for its efficiency and diligence. Never stoop low on quality because even a single day begins jail is troublesome. So think thrice before negotiating on fees and engaging a good criminal bail lawyer for your 498A & 406 IPC case.
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In the end , From my personal experience, Anticipatory Bail is most likely granted by the court but with stringent conditions. All what we are unsure about is whether it would be given at Sessions Court or High Court and this is the only mystery of law in India which we say rule of law prevails.
Rest be willing to return the dowry articles or advantage gained and your chances of getting Anticipatory Bail will be bright as always .
The next would be your choice of advocate/lawyer who will steer your case to the victory. So be clear and fair.
Also Read- 498A LATEST UPDATE BY SUPREME COURT
For more info on subject, feel free to call 99888-17966. This post is written by Advocate Satish Mishra
Remember not to delay in these matters of 498A & 406 IPC because jail of even one day in false cases can impair you mentally, physically and emotionally for years to come.
Be aware and keep visiting LegalSeva.
