During day of arrest & bail proceedings what happens?

I am spreading awareness, and am not personally involved in this matter.

Please see original article at his blog which is written with amazing clarity and wit. Truly eye-popping. This man is god for me because I could not describe what I had gone through but he explained in detail what the matter was. Hence, I salute him and my regards for him. Here is the link: "http://gururajbn.blogspot.com/2009/07/some-specimens-of-nobel-and-learned.html".

Monday, July 20, 2009 :Some Specimens of the Nobel and Learned Profession
(In the context of false case booked under Section 498A of IPC)
By B.N.GURURAJ, Advocate

This paper is the sequel to the blog I have written

about abuse of Section 498A of IPC, which was originally intended to put the scare of God into the husband and In-laws who harassed the daughters-in-law and their maternal family for dowry and other demands. What this provision has come down to in the hands of unscrupulous married women, wily lawyers and corrupt policemen, I have given a fairly detailed account in that blog. Now, you must know how the matters are complicated by the lawyers who connive with complainant in filing false complaint, not to speak of callous attitude and ineptness of the lawyers who have to defend the accused. I shall give blow by blow account of specific scenes. In this narration,

CL stands for Civil Lawyer of the Accused person.
CRL stands for Criminal side Lawyer of the Accused person.
OL stands for opposite side lawyer.

Day of arrest
Typically, the police sent for the parents of the husband and kept them in the police station. The parents were told to get their son to the police station. The implicit message was that they would not be allowed to go home until the son reported to the station.

As an instinctive reaction, the near relations of the husband and parents contacted the CL for guidance in the matter, a person with over four decades standing in the profession. He said he would send the CRL to the police station, though it would take some time for the CRL to reach.
At around 7.00 pm, the son reached the police station. Even by 7.30 pm CRL did not reach the police station. Frantic relatives contacted CL and asked him where is the CRL. Then the CL casually said that I will call him over the phone!

In the meantime, a plump woman lawyer

in mufti, with a mobile phone stuck to her ears was strutting around in the police station. A little later, the complainant wife joined her. They were seated in the chamber of the woman police inspector. Then the parents and husband were summoned. The woman lawyer asked “What is the figure you have in mind?”. The husband was baffled not knowing what figure he should think of. I was summoned into the chamber as the near relative of the accused persons. The lawyer spoke again impatiently, “name a figure, the matter will be settled”. Thereafter, some blame game ensued. Again the woman lawyer spoke “decide quickly. No one has time!” as though she were about to catch a flight. All the time, the police inspector paid little attention to the goings on and went busily about her work. Suddenly she barked: “Are you through or not? If not I will arrest these persons!”. I told the woman lawyer “You cannot use police station to force a settlement. This is a civil matter to be decided by the family court, where the divorce petition is pending.” “That is different, this is different. If he does not agree to settle, he will be arrested.” The husband refused to yield. The woman police inspector asked “Who should I arrest”. The complainant wife magnanimously said “don’t arrest my in-laws, but arrest this husband!”. Within next few minutes, the Police Inspector completed the arrest formalities. An arrest memo was given to me within few minutes informing me that the husband had been arrested under Section 498A (dowry harassment), 506 (criminal intimidation) read with Section 34 (common intention) and Section 4 of Dowry Prohibition Act. For good measure, this memo stated that since it was too late to produce the accused before the magistrate, the accused would be produced in the court next day. That meant that the husband would spend the night in some police station.

At this stage, which was around 8.00 pm, there was commotion outside the police inspector’s chamber. “How can you arrest a person on the basis of bare complaint? What statements have you taken? Where is the investigation?” That was the CRL, a plump middle aged man in late fifties, barged into the Police Inspector’s chamber and questioned how could she arrest the husband without investigation. The police inspector screamed back hysterically “we don’t care! As soon as we receive a complaint, we are bound to take steps to arrest!” CRL shouted back, “I know your Commissioner. I shall report the matter to him by next evening. I have contact with media. I will expose your malpractices. We will tell court how casually you have acted without investigation, based on stale facts. You will be chastasised (sic) by the courts!”

Amidst this commotion, I introduced myself to the CRL and told him that I was related to the arrested person and also a practicing lawyer. CRL gave me a cavalier look and told me “you people don’t know law! You should not have come here without a lawyer. Now, see what has happened.” I told him rather humbly, “look, we had called CL. He was supposed to have called you at 6.30 pm. But, he called you only after 7.30. In the meantime, the accused persons had no choice but to come here”. “Oh, that CL! What does he know about criminal law!” He asked me to join him to go to next building, where the ACP, the boss of this station would sit. Unfortunately, he was not available. CRL called him over phone and told him of the arrest without investigation. The ACP took some to revert back, with the predictable answer that if we had contacted him before arrest, he could have done something. Now, he was helpless.

Since the station was an all women’s police station, keeping a male prisoner would offend the modesty of police women. Hence, the arrested husband was shifted to another nearby police station, who refused to take him in on jurisdictional ground. Finally, he was taken to another police station. The husband was subjected to a thorough search. All the valuables were collected and given back to the parents who had chased him to this destination station. Parents were told that they could supply some food to the accused, who was to spend the night, until taken back to the all women’s police station.

In the meantime, I spoke to CL and told him of what had happened. He took it very casually. “These things will happen. It can’t be helped. What will the police do? They are not going to kill him! Your person has also made mistakes. He should not have come to India. He should have abandoned the divorce petition and stayed abroad!” These were the words from the very lawyer, who wanted the accused husband to present himself before the family court, so that evidence and cross-examination could be completed! He did not think that he as the counsel with four decades of experience, had a duty to anticipate such developments and advise the client suitably. It gradually emerged that the CL was clueless about criminal proceedings. He told me “Let the CRL handle the bail matter tomorrow. Tomorrow morning, go to my office, collect a copy of divorce petition along with enclosures and give it to CRL. He will need it for moving bail application.” With that piece of advise, all of us, rather dejectedly, retired for the night, leaving the accused husband to brave it out in the police station along with street thugs, and petty thieves. In the meantime, I had called the CRL and requested him to handle the matter of getting bail for the accused husband. He told me to bring copies of house property deed so as to give surety to the accused, as a condition of bail.

***********************************************
Bail application moved
Next morning, after collecting the divorce petition copy from CL’s office, I waited for CRL at the City Civil Court which also houses the Sessions Courts. CRL had given me clear instructions to contact him after 11 O’clock, which I dutifully did. He told me to join him in the court library, where he was doing case law research. In the meantime, I had found Suresh Nanda case, which had held that except the passport authorities, none, including the courts could seize the passport. I was very anxious that under any circumstance, the husband must not be deprived of his passport, which was indeed passport to his job and freedom. I gave this decision copy to CRL. He was apparently unaware of this decision. He condescended to accept the decision from and told me to locate the citation in the Criminal Law Journal, which I dutifully did. After selecting some decisions, CRL gave it to the library attendant, and told him to get two photocopies each, for which I paid.

We next went to the typing pool. CRL selected a typist with computer and commenced dictation of bail application. The CRL did a fairly articulate and competent job of dictating the bail application, got it printed. I paid the typist. Next we got the application photocopied, for service of one copy to the Assistant Public Prosecutor, without the enclosure of divorce petition. Thereafter, we went out to a lean-to shelter, where a middle aged person sat whose sole job was to stitch the applications, plaints, and petitions for advocates. He expertly did a tidy job and charged a modest sum of Rs.30 for that. Then the CRL asked me whether I would mind walking with him to the magistrates’ court which was about a kilometer away. I did not mind, and we walked together.

In the meantime, the anxious parents, who had spent sleepless night had come to magistrate court complex with photocopies of property documents. The house property was in the mother’s name, who was willing to give surety for bail. In the morning, these people along with their son-in-law had gone to the police station to ensure that the accused husband was provided some breakfast and was reasonably comfortable in the station. By that time, he had been brought back to the all-women’s’ police station.

Now, the CRL saw the photocopies of property documents and asked “where are the originals?” Of course, he hadn’t told that originals were required and these had not been brought. The father rushed back to his house to fetch these originals. The CRL went to the typing pool again and dictated a surety affidavit on behalf of mother declaring willingness to stand as surety for the accused husband. By this time, it was 1.00 p.m., and the father returned with original documents. We got these photocopies, and got the copies and affidavit notarized and were now ready to file the bail application in the court as soon as the accused husband was produced in before the magistrate. But, there was another important detail to be attended. That was about the Assistant Public Prosecutor.

In any criminal proceeding where the State is the complainant, it is represented by the public prosecutor, or assistant public prosecutor. In matters where the offences are bailable, bail is granted as a matter of routine subject to the accused giving personal bond and surety, or security. In non-bailable offences, such as the one under Section 498A, section 437 of the Cr.P.C provides that no court shall grant bail unless the PP has the opportunity to oppose the bail application. Therefore, we had to request the APP in this court to file his objections on the same day, so that the magistrate could consider the objections and release the accused husband on bail. We went to the APP’s office, armed with couple of notes of one thousand.

When the CRL asked the APP for this favour, he, an aging, balding and slimy character proclaimed his uncompromising sterling character: “I have never done it for any one, nor will I do it now!” The persistent requests from me and CRL fell on deaf ears. “How can I do that now, when I have not filed objections on the same day for any other case?” He added, “I don’t want money. My children are earning well. You come and sit in PP’s chair for a day. You will know the heat!”

We came out of his office. The CRL asked some court staff for solution. He was advised: go to so and so, who is an office bearer of advocates’ association. If he puts in a word, APP will definitely agree. The CRL and I went in search of this office bearer. After searching through dozen court halls and the association lounge, we located him. He was of course willing to help and accompanied us to the APP’s office. He told the APP, “Look, two senior counsels are here with a request for small favour. You need not do anything out of the way. Just file the objections today itself”. The APP objected, “you should know, in your own case where a CA was the accused, I did not do it, he went to Judicial Custody for a day. How can you ask me to do it now?”. The office bearer said, “That’s alright. What you did to me is different. Now oblige them!”. He discreetly told us to slip the APP three thousand rupee notes. The APP vehemently protested, but nevertheless accepted the money!

This done, the CRL and I went to the court’s bench clerk though whom the bail application and surety affidavit would be placed before the court. We tipped him suitably and told him of our anxiety to obtain bail on the same day. He rather airily replied, “Don’t you know the practice of this magistrate? None is granted bail on the same day in non-bailable offences. At least for one day, the accused will be sent to JC (judicial custody). Even if the APP files objections, this magistrate won’t consider it the same day. Cases under Section 498A are explosive. If the court hastily grants bail, even the court fears that it might be accused of leaning in favour of the accused!” With that, my heart sank. The accused husband was destined to spend a night and next day in the hell called Parappana Agrahara Central Jail. I gave the bad news to the parents and the accused, who had, by now been brought to the court. I think, I merely added to their misery by announcing this.

In the meantime, CRL was searching in the court’s Pending Branch for the copy of the First Information Report. After a short while, we rushed to me in near panic and told me, “come and see the FIR and complaint! That woman has said all sorts of things against the husband and in-laws.” I read the FIR and complaint which was with the Section head of the Pending Branch. The in-laws and husband had been accused of harassing her for dowry of Rs.2 lakhs to buy immovable property (I wonder where would one get immovable property for this princely sum in Bangalore?), treated her like animal, did not care whether she had food or not, that they physically and mentally tortured her. That they were influential people and could harm her including threat to her life and they had to be proceeded against in accordance with law. In the complaint and FIR, even the parents had been named as accused persons.

The vehemence of language in the complaint and the string of lies shocked me. I knew from personal knowledge that her mother-in-law would deliver food plate to wherever the complainant sat, when she returned home from work. I also knew that the complainant would leave the food standing for long time, thereafter reject it as cold or stale. But that was besides the point. The immediate concern were two fold: one, being accused, the mother could no longer stand as surety for the accused; two, being the accused, the parents ran the risk of being sent to JC, if the court noticed their presence in the court hall. CRL told them, “Go downstairs, and go away wherever you like, until I obtain anticipatory bail for you”. The panicked parents dashed out of the court complex, not to be seen or heard for next two weeks.

Since there was no question of obtaining bail on the same day, I agreed to be the surety for obtaining the bail. I did not have to rush to get the documents, as my surety affidavit would be moved only next morning supported by my property documents.

While waiting for our matter to be called, we were entertained by a cross examination by a counsel speaking Kannada with heavy Tamil accent. The issue was same, under section 498A. The complainant wife was in the witness box. The counsel grilled her, a person qualified in law and working for a leading law book publishing house, to expose that though she was earning Rs.40,000 a month, she took Rs.3000 as monthly maintenance allowance from a husband, whose reported annual income was Rs.1.03 lakhs! Eventually, at about 4.50 pm, our matter was called. CRL told the court that he was moving bail application, and submitted the copies of decisions he was relying on for supporting the grant of bail. The APP, for all that Rs.3000 was worth told the court that the accused person’s passport should be seized! There was no question of his obliging us by filing objections then and there. The magistrate routinely asked the accused whether the police had treated him badly. He replied in the negative. Equally routinely, ignoring the CRL’s pleas to grant bail, the magistrate remanded the accused to JC for the day, and posted the matter for next day to consider APP’s objections. The CRL gravely approached the accused husband and told him “tomorrow we will definitely get you out on bail. Be brave and put up with this for a day!”

The police approached me and asked to provide transport to take the accused husband to Parappana Agrahara Central Jail, failing which, he would be taken there along with criminals. Horrified at that prospect, the brother in law of the accused lent his service by agreeing to take the police and the accused in his car. Couple of more cops also joined the trip. All were amply fed on the way including the accused, as we did not want him to eat jail food at least for that night.
Dejected, and feeling depressed, all of us returned home, thinking of the accused husband, who was destined to spend time on hard cold floor with other under trials, while we were going to sleep in the comfort of warm bed.

Bail was granted
Next day, the CRL asked me to be present in the magistrate court campus by 1200 hours. Till that morning, I was under the impression that the accused person would be brought from the Parappana Agrahara Central Jail and the bail application would be decided in his presence. The basis for this assumption, as an advocate who had done some work on criminal side, I had seen that the proceedings usually took place in the presence of the accused persons. Much to my distress, I learnt from a colleague whom I met in the court that at the stage of grant of bail, the accused will remain in JC until the bail order is communicated to the jail authorities. In some unlucky cases, I was told, the accused had remained in JC even for a week! All the while I was thinking that spending a night in the jail was bad enough, but here was worse news. Now, my prayer to the Lord Upstairs was to bless the accused with freedom at least today.

I waited there along with original property documents as I was going to be the surety for getting the accused husband on bail. CRL came and straight away entered the typists’ pool, choose a typist with an aged typewriting machine and dictated the surety affidavit, after gathering my particulars and the particulars of the property I owned. We went to notary public to get the affidavit and enclosures notarized. I asked the notary what is the fee, although I knew that it should be around Rs.30. The notary said, “whatever you decide to pay!” CRL told me to pay his Rs.30, which I did. The CRL did not have any tools for stitching or stapling the papers together. I too did not carry either the stapler, or sewing needle or thread, which I usually did when I have to do some filing. Eventually, he managed to borrow stapler from a court staff and bunched the paper together. The manner in which he was handling the papers left them crumpled and creased. I had to wince at this treatment of papers, for I was used to meting out far gentler treatment to the document I handle.

Be that as it may, by 1.30 pm, we were in the court hall. Before going to the court hall, we sent to APP’s office outside the court hall to ensure that he had his objections ready with him. He indeed had it ready, though he did not serve us any copy. We waited with bated breath for our matter to be called.

In the meantime, I had to step out for a short while as a client wanted to urgently consult me on some matter. While I was discussing with my client, CRL suddenly rushed out of court hall and frantically beckoned me. “Matter is about to reach! What are you doing standing there!”. Duly chastised, I joined him in the court.

Within next few minutes, the bench clerk called out our case. APP said “I am filing my objections”. The magistrate heard the CRL for just two minutes and exclaimed “what do you want? Release of your client, isn’t it?” CRL exhaled a breath of relief and uttered a relieved “Yes!”

APP again opened his mouth to say that passport of the accused should be impounded. CRL jumped to his feet and said “your honour!, this Hon’ble court has no power to impound the passport! I am producing Suresh Nanda case, where the Supreme Court has so held. Your honour may read it at convenience.” APP saw the decision and said “your honour!, that decision is distinguishable. That was a case where the passport had been seized during search. In this case, there is no seizure. Therefore, it can be impounded!” But, the magistrate ignored this intervention by the APP and went about dictating the bail order. Suddenly he paused and asked, “Who is giving solvent security?” I stepped forward. I was in counsel’s dress. He looked at me quizzically and asked me whether I was indeed the surety. I assured him that I was a counsel and also a relative of the accused and was willing to stand a surety. I described the property to him. The magistrate saw the originals, returned all the originals and completed the bail order, with usual conditions (1) not to threaten the opposite party, (2) to mark attendance in the police station on every Sunday, until further orders, or until charge sheet was filed. Personal bond and surety bonds were fixed at Rs.30,000 each.

Thereafter, the magistrate heard another bail application and allowed it and the court rose for recess. This was a case, where a high ranking executive of a company had been grabbed by the police from his office, also on false complaint, by a wife who was in comatose condition in a prestigious hospital of Bangalore! This husband was spending close to Rs. 40,000 a day towards hospitalization for this complainant wife. He too was in early thirties. Evidently, the complaint had been filed by the wife’s relatives, as a means of extracting money from the husband, whom they considered as a money bag.

After the court rose, I shook hands with CRL and found to my surprise, it was clammy and cold as dead fish! It was perversely reassuring for me to know that even lawyers with decades of experience feel diffident while representing the client in a critical matter such as this!
The paper work for getting the accused out.
Immediately, we rushed to the court typist and tipped him heavily to ensure that he typed the order immediately. Next we tipped the bench clerk to ensure that he placed the typed copy for signature of the magistrate. After securing that end, we went to the court’s Pending Branch and tipped the Assistant, whose job it was to write the bail bond, surety bond and release order. He had not reported to duty in the morning! We anxiously waited for some news about who else would write these documents. Fortunately, after about ten minutes wait, the person arrived there like an angle. Apparently, he had to perform certain religious ceremonies in the morning. The call of the duty (and the handsome tips it fetches) was so important that he reported to duty in the second half!

The CRL thereafter explained to me that mere dictation of order in the court did not ensure release of he accused. We had to ensure that the order was typed and signed by the magistrate; that the signed order reached the Assistant who wrote down the release order and bonds; that these documents had to be again placed before the magistrate for his signature; thereafter, both the documents had to be delivered to the court courier, whose job it was to deliver the orders to the Parappana Agrahara Central Jail by 6 O’clock in the evening. Therefore, we could not rest or think of eating food, until the release order duly signed by the magistrate reached the court courier.

Between 2.00 pm and 3.00 pm, we made certain that the order was typed, and reached the bench clerk for obtaining the magistrate’s signature. Promptly, as promised, when the court re-assembled at 3.00 pm, within minutes, the bench clerk got the bail order signed by the magistrate. Then, we tipped the court peon so that he would carry the signed file to the Assistant in the Pending Branch who wrote the bail bonds and release orders. The Assistant was quite helpful. Within next ten minutes, we had both documents ready. The court peon took it back to the bench clerk in the court. We anxiously hovered behind the Bench clerk to ensure that he placed it before the magistrate. In a few minutes that was also done. However, I found that in the surety bond, the magistrate had not signed. Once again, I told the bench clerk to place the paper before the magistrate for signature. This was also done. The court peon, rather grudgingly took the papers back to the Assistant in the Pending Branch. The Assistant wrote the details of the bail bond and release order in a register, and sent it through the same peon to the court courier, whose office was located in the ground floor.

The court courier was not available, someone else in that office took the orders and acknowledged it. We were told that it would be in our interest to be ready with our cars, so that we could expeditiously take the court courier with us. We were advised to be present at that office by 5.00 pm positively.

Thereafter, CRL and I went out to eat some snacks in a restaurant few buildings away. When we returned, the brother in law of the accused was waiting for us, to pay the fee of the CRL. Previous evening, though the accused was sent to JC, I felt that for that day’s running around, the CRL must be rewarded. I had paid him 10K. Now, the brother in law asked what the fee was. The CRL hemmed and hawed a lot and finally demanded 15K, including the 10K I had paid the previous day. For all the running around he had done since yesterday, all of us felt that he had understated the fee. I told the brother in law to pay another 10K to the CRL. A relieved and broadly grinning CRL took the additional fee of 5K with happiness writ large on his face. Thereafter, the CRL introduced us to a policeman who worked in Parappana Agrahara police station and lived in the vicinity of that jail. He told us that this constable could be of some help to us. The police seemed nice enough a person. He praised the court courier as a very nice and helpful person. To me, it meant that for certain money consideration, he might be able to speed up the release process from Jail, which I had learnt by now, could go on until 10.00 pm.

The CRL left for the day, cautioning us about the nefarious characters we were dealing with. He cautioned us, rather exaggeratedly I thought, that the opposite party would not hesitate to snatch away the accused husband as he came out of jail. Therefore, we must go there in strength! We faithfully followed this advise. Three of us got ready to proceed in two cars.
The accused husband got out at last!

By 5 O’clock, we went to the court courier’s office and found him over there. He seemed like a nice, well behaved person. He joined us by 5.10 pm and asked us to leave. The policeman, the court courier, and one of his relatives, who had just landed in Bangalore also joined me in my car. The brother in law and a cousin of the accused followed us to the Jail in another car.

After going through the terrible traffic of Hosur Road, by the time we reached the vicinity of the Jail, it was about 6.15 pm. The place remote and foreboding. Police station was on the left hand side and the imposing structure of the jail occupying perhaps a hundred acres was on the right. We parked the car at the end of the road. I accompanied the court courier and the policeman to the entrance of jail. The Policeman had promised me to take me inside the jail. However, at the entrance, the guard on the inside of the entry door refused to allow me entry, although I was in counsel’s dress.

During the waiting time for next hour and a quarter, I saw the rude and wild behaviour of jail guards. If you think the police are arrogant, you would change your opinion after seeing the jail guards. I wondered what kind of training had been imparted to them. Perhaps, it was necessary for them to deal with hardened criminals inside the jail. But, should they have same abrasive and attacking behaviour with the public outside the jail compound?

The policeman and the court courier had promised to get our accused person out of that place in about fifteen minutes. True to his word, during our journey, he actually called someone inside the jail and requested him to keep the person ready for release. However, this did not happen. We had to wait upto 7.30 pm before we could see our person.

We were chased from the entrance of jail to the outer compound. From outer compound, we were chased to the opposite side of the road. Our cars had to be removed hastily from where they had been parked, as a wandering guard threatened to deflate the tyres!

We saw a huge crowd of people, about forty of them, unmistakably ruffian characters. Remembering the scare put into us by the CRL, we began to wonder, which of them might to snatch away our accused person? To our relief, it turned out that a big thug was released at around 7.10 pm. These people had arrived to receive him. The thug was given a hero’s welcome and the cavalcade left the place in about ten minutes.

Next our person came out by about 7.30 pm. He had given message to his father through a public phone installed within jail to send Rs.4000 in hundred rupees currency. This was for repaying the ‘facilities’ given to him in the jail such as clean meal plate, a blanket and pillow, and for not troubling him during the night and day. However, having come out of jail, he had no way of taking back the money for distribution. We left the place, with the accused husband in the car with his brother in law and cousin, and I escorted back the court courier who came out after about ten minutes. I believe that the presence of these people certainly helped our person to come out within an hour and a quarter. Many more persons for whom release orders had been delivered had not been let out yet. We thanked what little luck we had and started our journey back to the city.

Once we reached the city, I gave Rs.200 to the court courier. He looked at it rather dubiously and said “I have to pay the jail staff who made it possible to get your man out within an hour. Give me another one thousand rupees”. Without demur, I paid him, dropped him near the court complex and left for home. All of us reached home, within half an hour of each other. At night, the accused husband was recounting the experience of being State guest for a day. It included story about caste-wise group formation within the admission area of the jail, casually beating up the under trials, setting them on the jobs such as cleaning of toilets and so on. It seems that one person was caned on the leg for refusing to tell his caste! I was too tired to listen to these tragic-comic stories and retired for the day.