Anticipatory Bail: Payment to wife & child before anticipatory bail, not amount to buying bail

Delhi High Court: In a matrimonial dispute where the wife had filed a complaint against petitioner husband under Section 498-A IPC, while holding that the complainant being an unemployed lady who is not willing to live with her husband and is dependent on her parents for her and her child’s need, the Court directed that the petitioner will be granted anticipatory bail subject to the condition that he shall pay Rs.50,000 to the complainant wife for meeting day to day requirements of their infant child and subject to the fulfillment of above condition, in the event of arrest, the petitioner be released on bail on furnishing a personal bond of Rs.20,000. The question raised in the instant case was whether the gesture of maintaining his wife and child which should have been volunteered by the petitioner but instead it was suggested by the Court, can be termed as “buying bail” by imposing unreasonable conditions and crossing the jurisdictional limit of Section 438 CrPC.

The petitioner counsel Satish Tamta contended that in a proceeding under Section 438 CrPC, the Court cannot award maintenance to wife and child or subject the accused to unreasonable conditions, as any order imposing a condition on him to pay money would be beyond the powers conferred on the Court and would amount to “buying bail”. He said that the petitioner is ready to take back the complainant and his daughter. Rejecting the above contentions, the Court held that under Section 438 CrPC, the Court has been conferred full powers to include such conditions as it may think fit in the light of the facts of the particular case, including the conditions mentioned therein. It was concluded that a child should not suffer at the cost of warring parents hence, the Court’s suggestion to the petitioner to make provisions for the immediate needs of the child, cannot be described as buying bail or awarding maintenance. The mother being unemployed, the child’s father should perform some obligation towards her and make some provision for her so that her mother could take proper care of her. [Avinash v. State, Bail Appln. 35/2014, decided on 25-07-2014]

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