Libertatem Magazine

Case Analysis: Avinash Bhatia and v State (Nct of Delhi)

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Citation: 119 (2005) Dlt 1


The petitioner and the complainant married in 2012 and gave birth to girl in 2013. Two months after her birth, they had a quarrel in which the complainant sought a share of the petitioner’s family’s property. They started living separately and soon the complainant filed a complaint of Section 498[], 406[] and 34[] of IPC against her husband. Petitioner sought anticipatory bail on the grounds of there not existing any cogent evidence of the aforesaid offences, that he is willing to reside with the complainant and his daughter and that he is ready to be part of the investigation. The custody of the daughter was currently with the complainant.

The same year, Additional Session Judge rejected the petition for anticipatory bail observing the allegation of harassment as well as the demand for 10,00,000 rupees along with jewellery by the wife to be the reasoning. Subsequently, the petitioner appealed to the Delhi High Court where bail was granted to him in 2014. The court stated that 50,000 rupees was to be paid by him as maintenance and 20,000  rupees along with a personal bond ought to be provided by him to the concerned IO.


In the present case, the observation before the High Court was that there was a wife who was incapable of maintaining herself and her daughter and that the husband was seeking anticipatory bail. So, the issue which arose was:-

“Whether paying the amount of maintenance can be imposed as a condition for grant of anticipatory bail by the court?”


Section 437(3)[] and Section 438(2)[] of the Criminal Procedure Code were used and deliberated upon throughout the proceedings. These provisions state that grounds that are imposable for the purpose of ensuring the accused is permitted to partake in the investigation, enquiry or trial with the course of justice. Other conditions which the court deems fit may also be applicable but the basic objective must be to guarantee the petitioner’s presence as well as his non- interference with the investigation, enquiry or trial.

  • Arguments


The Petitioner sought bail on the reasons that even if every allegation levelled against him were true, there is no legal evidence to prove that the petitioner committed the alleged offences; that the complainant filed the FIR with a pure ulterior agenda given her husband’s non-compliance with her terms; and that he is also ready to partake in the investigation.

It was ultimately submitted by Advocate Satish Tamta, counsel on the petitioner’s behalf that the petitioner is willing to take in the complainant and their daughter into his residence, if his wife wishes the same but he was not willing to buy his bail by way of payment to his wife.

The counsel also submitted that in a trial regarding Section 438 of the Cr.P.C, the court cannot award the wife and child maintenance while subjecting the accused to perverse conditions as it would be beyond the court’s jurisdiction. Advocate Satish Tamta further argued that while granting anticipatory bail, the conditions to which the accused is subjected, are stipulated under Section 438 of Cr.P.C and an order by the court directing him to pay the maintenance through bail would be beyond the powers of the Court as per Section 438 of Cr.P.C.


The counsel on behalf of the defence contended that there existed specific, clear and rightful allegations of harassment against the accused-appellant and that the demand for 10,00,000 rupees by the complainant along with requisite jewellery articles in possession of her husband and his family was wholly valid.

On behalf of the State and the complainant, it was simply submitted that the complainant had not been awarded any maintenance till date even though she had filed a petition claiming the same. It was further submitted that the complainant and her daughter are dependent on her family as she was not even employed.


The Hon’ble High Court observed that the present matter at hand was a marital dispute and it requested the counsel on behalf of the petitioner to consider the minimum possibility of what the petitioner could provide for his daughter during the period of litigation so that at the very least, their daughter is not subjected to her parents’ quarrel.

The Court opined that as her father, he was obligated to assume some responsibility for his daughter as in marital disputes, the possibility of the parties reconciling, however miniscule, is always there.

Ultimately, the court ruled that the petitioner was to be granted anticipatory bail on the condition that he pay 50,000 rupees to his wife within a fortnight from the date of the given order for the purpose of her being able to meet daily requirements of their daughter.

Thereafter, subject to the fulfilment of above condition, in the event of arrest, the Petitioner can be released on bail by furnishing a personal bond of the sum 20,000 rupees with one surety in the like amount to the satisfaction of IO concerned.

  • Analysis


In M.R. Narayanan v. State, the Court observed that it can’t impose any condition on the petitioner by ordering him to deposit money as a prerequisite for seeking anticipatory bail.[]

In Munish Bhasin v. State of NCT of Delhi the appellant was directed by the High court to pay 12,500 per month as maintenance to his wife and child in order to get anticipatory bail, even though the wife was employed. Accordingly, the Supreme Court ruled that the question of maintenance ought to be decided only if the proceeding in question is relevant to it. Under Section 438 of Cr.P.C, the court is not justified in awarding maintenance to the wife.[]

In M. Sreenivasulu Reddy v. State of Tamil Nadu, the Court ruled that it is neither permissible nor appropriate to compel the accused to purchase bail through the order of awarding maintenance as that doesn’t fall under the Court’s purview.

It’s is evident from the aforementioned that courts can’t impose such a condition on the appellant who is seeking anticipatory bail wherein the same is promised based on the payment of maintenance which is totally the separate issue from the grant of anticipatory bail.[]


Under Section 125 of Cr.P.C, the right of maintenance extends to the wife, children and indigent parents. The claim for maintenance is decided on the basis of the husband’s capacity to provide the same. However, under this provision, a wife will not be entitled to maintenance if she commits adultery, refuses to live with her husband or separates from him through mutual consent.[]

In the present case, it’s evident that the wife refused to reside with her husband as he was unable to satisfy her demand of claiming a part of his parents’ property. Therefore, according to Section 125 of Cr.P.C, she is not entitled to claim any maintenance from him.

On reading of Section 438 of Cr.P.C, it is evident that anticipatory bail can be granted based on the discretion of the court and the court may lay down some conditions for the same but not any that fall beyond the scope of Section 438.

  • Recommendations and Conclusion


  • Section 438(2)(iv) of Cr.P.C should provide proper explanation by defining the scope of the phrase “such any other conditions” as there may be partiality reflected by the judicial authorities if they begin imposing any amount and manner conditions for bail.
  • The need for granting anticipatory bail often occurs due to influential individuals attempting to frame their opponents in false cases. Hence, the relevant section must clearly state that direction can be issued only for reasons recorded and if the court is satisfied about it being necessary in the interest of justice.
  • Denial of bail means deprivation of personal liberty as it violates Article 21 the constitution. The court should, hence, prevent the imposition of unnecessary restrictions on the scope of Section 438.
  • Section 438 hampers effective investigation of serious crimes. The accused can misuse their freedom to criminally intimidate and even assault witnesses. 

In cases of anticipatory bail, no uniform, straight-forward procedure can be recommended since every case differs in terms of its facts and circumstances. Personal liberty, is a very valuable fundamental right, should only be curtailed when it becomes imperative, based on the facts and circumstances of the particular case. is now on Telegram. Follow us for regular legal updates and judgment from courts. Follow us on Google News, InstagramLinkedInFacebook & Twitter. You can subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.


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