How to challenge interim order

[Monika Garg]

Sir,
i was harrassed by my husband and in laws. So i filled 498a againt husband . Husband was not ready to give jewellery and dowry articles given by us. My gusband was initially arrested for a day , thereafter court ordered for 14 days judicial custody . After 10 days , my husband was released on bail by giving false statements like dowry articles are recovered etc.

Sir, is there any way to challenge this bail ? My lawyer is saying that its interim order . Can’t we challenge the interim order in court ??

No dowry article is recovered sir.

[Monika Garg]

Can we challenge the bail order in session court as lower court has given bail to him ?

[Dr. Ashok Dhamija]

No doubt, order granting bail is an interlocutory order, which is not subject to revision under Section 397 of Cr.P.C. It is noteworthy that in the case of Amar Nath v. State of Haryana, (1977) 4 SCC 137 at p. 142 : AIR 1977 SC 2185 : 1977 Cri LJ 1891 [also see, Ram Naresh Singh v. State of M.P., 1995 Cri LJ 2523 at p. 2524 (MP)], it was inter alia observed by the Supreme Court, while giving examples of interlocutory orders, that passing orders for bail may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the Criminal Procedure Code.

However, you can always file a petition under Section 482 Cr.P.C. before the high court for setting aside the order of bail, if it is erroneous or illegal, etc.

It has been held by Gujarat high court in the case of Bhikhaji Chaturji Thakore v. State of Gujarat, 2007 Cri LJ 3433 at p. 3439 (Guj), that the bail can also be cancelled on the ground that the order granting bail is casual in approach, capricious and arbitrary in nature and cavalier in the reasoning, it sans reasons, it is perverse, it ignores the evidence which is available on the record or the Court failed to apply appropriate law while granting the bail.

Please also note that, as held by the Supreme Court in the case of Puran v. Rambilas, AIR 2001 SC 2023 at p. 2026 : 2001 Cri LJ 2566 : (2001) 6 SCC 338, the concept of setting aside the unjustified, illegal or perverse order granting bail is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation.

In your case, on the basis of the facts mentioned by you, you’ll have to challenge the bail order for setting it aside on the grounds of it being perverse and arbitrary, among other grounds.

[Note: Judgments quoted in the reply are taken from my book Law of Bail, Bonds, Arrest and Custody (2009 Edition), appx. 1625 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-440-0).]

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Monika Garg]

Respected sir,
Thanks a lot for the reply.

Further, one lawyer is saying that we can challenge it in sessions court (may be to extract money from already me, who is already destroyed by fate.) . So its clear that there is no provision to challenge it in dessions court ?

[Dr. Ashok Dhamija]

If you want to apply for cancellation of bail (which generally implies that there is some development after the grant of bail, such as destroying evidence, threatening witnesses, etc.), instead of setting aside of the bail order (which will also ultimately lead to cancellation of bail), then you may consider approaching the Sessions Court under Section 439(2) of Cr.P.C. Please consult your lawyer, who would be the best person to advise you in the matter since he would have seen the detailed papers of your case. This is so because the opinion given here is only of a general nature, having been given without knowing the full details of the case.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Monika Garg]

Thanks a lot sir.

No dowry article is recovered and husband has submitted that all recovery is done in bail application. So, I think High Court is the best option.

What is setting aside of the bail order (which will also ultimately lead to cancellation of bail) sir ? Is it done by petition under Section 482 Cr.P.C of High Court ?

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