January 23, 2022

Case Brief: Avinash v. State

Case name- Avinash v. State

Court– High Court of Delhi

Bench – J. Pratibha Rani

Theme: Maintenance not a condition for anticipatory bail.

Subject: Cr.P.C

Judgement: India

Facts of Avinash v. State

  • Petitioner is the husband of the complainant seeking anticipatory bail under section 438 Of the code of criminal procedure.
  • Petitioner and the complainant married each other on 13.02.2012 and out of the wedlock baby girl was born on 09.01.2013.
  • The custody of baby girl is currently with mother i.e. complainant.
  • Complainant and petitioner after 2-3 months from birth of baby girl got into an argument. Complainant argued with petitioner for getting his share of property from his family.
  • Due to the argument they both started living separately. Complainant filed a false complaint in crime against women cell under:
  • Section 498 – A of IPC i.e. husband or relative of a husband of a woman subjecting her to cruelty.
  • Section 406 of IPC i.e. criminal breach of trust.
  • Section 34 of IPC i.e. Act done by several persons in furtherance of common intention.
  • Petitioner seeks bail on the following grounds-:
  • There is no legal evidence of the offence, even if offence to be taken true.
  • He is ready to live with complainant and child.
  • Petitioner is willing to join the investigation.

Procedural History

  • First, petitioner prayed before the Additional Session Judge for grant of the anticipatory bail which was being rejected on 20.12.2013 on the grounds that:
  • Daughter was born out of that wedlock.
  • Specific allegation of harassment and demand of Rs.10 lacs along with jewellery was kept in front of petitioner.
  • Then, the petitioner appealed before the Honourable High Court of Delhi and bail was granted to him on 25.07.2014 stating that Rs. 50,000 to be paid as maintenance to the wife within 15 days from such order and Rs. 20,000 with one surety along with personal bond to be submitted to SHO/IO concerned.

Issues in Avinash v. State

Here in issue before the Honourable court was that on one side there was the wife who was unable to maintain herself and her children along with anticipatory bail of the husband i.e. whether paying the amount of maintenance can be imposed as condition for grant of anticipatory bail by the court?


Section 437(3) and Section 438 (2) of Criminal Procedure Code were use throughout the litigation. They state that conditions which can be imposed are primarily with a view to ensure availability of the accused during investigation, enquiry or trial and his non-interference with the course of justice.[1]

Other conditions which court may think fit can also be imposed but idea should be to ensure his presence as and when required and his non- interference with the investigation, enquiry or trial. It is obvious that other conditions should be ‘Ejusdem Generis’ to the conditions which are already enumerated under the above sections.[2]

Judicial Approach

In M.R. Narayanan v. State it was being held that court cannot impose any condition on the petitioner by directing him to make some deposit as a pre-condition to seek the anticipatory bail.[3]

In the case Munish Bhasin v. State of NCT of Delhi the appellant was assailed with the condition imposed by the High court while granting anticipatory bail to the appellant and his parents requiring him to pay Rs. 12500 per month as maintenance to his wife and the child. In the facts and the circumstances that the wife was employed and receiving a handsome salary and not entitled to maintenance and further the question of maintenance should be left to decide by the court in appropriate proceedings, the Apex court held that in proceeding under Section 438 CrPC, the court would not be justified in awarding maintenance to the wife and child.[4]

In M. Sreenivasulu Reddy V. State of Tamil Nadu it was held that neither it is permissible nor appropriate either to buy bail by accused by offering to pay the alleged amount or sell bail by the court in calling upon the accused to pay the amount.[5]

It’s very much clear from the above precedents of the different Honourable Courts that the courts cannot impose such a conditions on the appellant for the grant of the anticipatory bail where such conditions are being imposed which are totally the separate issue from the grant of anticipatory bail.

Law Commission Report

The expression anticipatory bail is nowhere defined in Cr.P.C. However, the Supreme Court in Balchand Jain V. State of M.P. has characterized anticipatory bail to mean “a bail application of arrest.”[6]

The Supreme Court emphasized that anticipatory bail is a device to secure the individual’s liberty, and neither a passport for the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. The 48th Report of the law Commission cautioned that the power of anticipatory bail is a power that must be exercised in very exceptional cases.[7]

In the report it was further recommended that to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after a notice to the public prosecutor. Section 438 Cr.PC must not be applied mechanically and anticipatory bail should not be granted in every case upon request. The discretion to grant anticipatory bail cannot be said to be totally untrammelled and unfettered.[8]

Judicial precedence can provide guideline or limitation to the discretion vested in the courts to grant anticipatory bail.[9]

So, by reading of law commission reports it’s very much clear that grant of bail is totally on the discretion of the courts. Court can grant anticipatory bail if they may think fit to do so and grant is on the basis of some conditions. But that conditions should be very much reasonable and valid. Where in our case laying down that condition for paying of maintenance to the wife is unreasonable as the conditions in grant are as such -:

  • He must not tamper the evidence or witness.
  • Don’t pressurize the petitioner for taking back of case.
  • Don’t flee free. etc.

Comparative Study

Bail law in Australia, New Zealand and United Sate of America holds that there is a prima facie entitlement to bail for most charges upon application by a defendant. There is an exception when the charges are especially serious, such as drug trafficking, family violence or murder. In such cases, there is no entitlement to bail, and it must be argued as to what circumstances exist that justify a grant of bail.[10]


In country like Australia the defendant who faces a more serious charge unless the defendant demonstrates compelling reasons why bail should be granted. Bail conditions are only imposed in the crimes such as murder, terrorism or offending with a moderately serious charge. So, when it comes to cruelty by the husband on wife and husband seeks bail from the court in such cases in Australia court grants bail only with the condition to produce the sureties before the court no conditions as such of maintenance is put.[11]

New Zealand

When considering granting bail, courts take into consideration factors such as: the person’s likelihood of showing up to court, the nature of the offence, the persons past conduct, whether the person will offend again while out on bail, and the risk of evidence/witnesses being tampered with. So there is also no such condition’s put before the petitioner for the grant of bail.[12]

United States

The 8th Amendment to the United States Constitution states, “Excessive bail shall not be required,” thus establishing bail as a constitutional right. What constitutes “excessive” is a matter of judicial discretion, and bail can be denied if the judge feels that it will not aid in forcing the accused back to trial. Money bail is the most common form of bail in the United States. So when interpretation is made it can be said that in United States also the bail whether to be granted or not is totally in the hands of the courts and the only condition is bail money to be paid.[13]


Legislative Analysis

Under Hindu Laws 

Maintenance under the Hindu Adoption and Maintenance Act 1956 is provided as a right to wife to claim the maintenance from her husband. A wife can file a maintenance case under this act in India against her husband when she is unable to maintain herself. A wife who claim maintenance under the Hindu law can’t claim the maintenance under the criminal law then.

Under matrimonial laws, if husband is ready to cohabit with the wife, 8then the wife’s claim to maintenance is rejected. On analysing of our case, husband was ready to live with the wife, it was the wife herself who forced husband to claim property from his parents on failure to do so she left her matrimonial home. Since, husband ready to cohabit so court should not give maintenance to wife.[14]

Section 125 Of CrPC

Under Section 125 CrPC, right of maintenance, under the family law in India, extends not only to the wife and dependent children but also to indigent parents and divorced wives. The maintenance claim depends upon the husband’s capability to provide sufficient means. However, under Section 125 of CrPC a wife will not be entitled to receive maintenance if she has committed adultery, refuses to live with her husband or separates from her husband with mutual consent.

In our case it’s clear that wife refused to live with her husband, because he was not able to fulfil her demand of claiming his part of property from parents. So, according to section 125 of CrPC wife is not entitled to get the maintenance.[15]

Judicial Analysis

In the landmark judgements such as M.R. Narayanan V. State, Munish Bhasin V. State of NCT of Delhi and M.Sreenivasulu V. State of Tamil Nadu the honourable courts clearly said that such pre condition of maintenance cannot be imposed of any person where the matter in front of the court is only for the grant of anticipatory bail.

On reading of Section 438 of the Code of Criminal procedure it is evident that grant of anticipatory bail is totally on the discretion of the court’s and court can lay down certain conditions but not conditions should be within the scope pf section 438.

Recommendations and Suggestions

1. Proper explanation for section 438(2)(iv) of Cr.P.C be made

On bare reading of section 438(2)(iv) it goes like “such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section”. In this authorities should define the scope of “such any another conditions” as it will be biasness on the part of judicial authorities if they start imposing any conditions for bail.

2. Prevention of cases filed with mala fide intention

The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for disgracing them. So, the relevant section should make it clear that direction can be issued only for reasons to be recorder and if court is satisfied that such direction is necessary in interest of justice.

3. Denial of bail leads to deprivation of personal liberty

Since denial of bail leads to deprivation of personal liberty i.e. violation of article 21 the court` shall lean against the imposition of unnecessary restrictions on the scope of section 438, especially when no such restrictions have been imposed in terms of that section.

4. Hampers effective investigation of serious crimes

The working of Section 438 has been criticized that it hampers effective investigation of serious crimes, the accused misuse their freedom to criminally intimidate and even assault the witness. Therefore, amendments are to be made.


In cases of anticipatory bail, no straight jacket procedure can be recommended for universal application, since each case must be regarded on its own merits and in its facts and circumstances. Personal freedom, which is a very valuable fundamental right, should only be curtailed when it becomes imperative according to the particular facts and circumstances of the case.

For more case briefs, click here.


[1] Section 438(2), The Code of Criminal Procedure.

[2] Section 437 (3), The Code of Criminal Procedure.

[3] M.R. Narayanan v. State 2002 (3) JCC 1674

[4] Munish Bhasin V. State of NCT of Delhi, (2009) 4 SCC 45

[5] M.Sreenivasulu Reddy V. State of Tamil Nadu, 2001(2) Crimes 230

[6] Balchand Jain V. State of M.P., AIR 1997 SC 2447

[7] Law Commission of India, forty-first Report on CrPC,1898, Vol.1(1969)

[8] Law Commission Of India, Report no 268 of CrPC,1973 Vol.1 (2017)

[9] Suresh Chand V. State of Rajasthan , 1985 Cr.LJ 1750 (Raj)

[10] Bail Decisions and Under- Trail Detention., 1st March 2019, Retrieved 25th January 2020

[11]Bail in Australia, Retrieved on 25th January 2020

[12] Bail: Being released while your case is ongoing, Retrieved on 25th January 2020

[13] United States of America 1789 (rev. 1992), Retrieved on 25th January 2020

[14] The Hindu Adoption and Maintenance Act, 1956

[15] Section 125, The Code of Criminal Procedure.

Contributed by: Anshit Aggarwal (Student, Symbiosis Law School, Pune)

Law Library LawBhoomi

Leave a Reply