By AdminOctober 28, 2020

Whether maintenance can be granted in proceeding u/s 438 CrPC.

Tags: Criminal Lawyer Kolkata

Author- Devajyoti Barman, An advocate practising mainly in High Court, Calcutta and Supreme Court , Arbitrator, Columnist , Secretary General of Bangladesh-India Mediators Forum and Managing Partner of Ace Legal.  
Introduction-
  The  recent buzzing of special media on the news that Supreme Court has uphold that the High Court is equipped to pass an order of maintenance while disposing of the application for anticipatory bail has made it expedient to throw some light as to whether this widely circulated notion is true.    
Genesis of Confusion-
  In a final judgment and order dated 20-09-2019 in CRLM No.37923/2019 and modification order dated 22-01-2020 in CRLM No.81846/2019 passed by the High Court of Judicature at Patna) it was held that the petitioner/husband can be reached on bail being arrested by the Police in connection with the case in section 498A on condition of payment of monthly maintenance of Rs.20,000/- to his wife.
  The said decision was assailed before the Supreme Court of India in SPECIAL LEAVE PETITION (CRIMINAL) Diary No(s).20961/2020 wherein the Apex Court by its order dated 16.10.2020 was pleased to pass the order- “ Having heard learned counsel for the petitioner and carefully perusing the material placed on record, we see no reason to interfere with the impugned order passed by the High Court. The special leave petition is, accordingly, dismissed.
“ This has led to a widespread belief that the Supreme Court has affirmed the alw that the High Court can indeed grant maintenance in a proceeding u/s 438 CrPC though it has been spelt out in clear terms in MunishBhasin&Others  Versus  State (Govt. of N.C.T. of Delhi) & Another “ It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and sub-section (3) of Section 437 of the Code. Normally, conditions can be imposed 9i) to secure the presence of the accused before the investigating officer or before the Court, (ii) to prevent him from fleeing the course of justice, (iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or (iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code “
   
The Law on merger of Order-
  The Supreme Court in Kunhayammed&Ors. —Appellants versus State of Kerala &Anr. —Respondents in the year 2000 has made it clear that Doctrine of merger does apply in case of dismissal of special leave petition under Article 136.It does not take away jurisdiction of lower Court whose order/judgment was subjected to SLP. When SLP was granted and appeal thereafter stood dismissal High Court’s order merger with that of Supreme Court.Even if dismissal order of SLP is supported by reason then also doctrine of merger would not be attracted but reason stated by Supreme Court would attract applicability of Article 141.Statement of law contained in such an order would be binding on parties and Court—Still case not being one where leave was granted doctrine of merger would not apply .
    The same view is reiterated in the year 2019 as well when the apex court once again in THE STATE OF JAMMU AND KASHMIR AND ORS. – Appellants VERSUS FARID AHMAD TAK – Respondent has held that However, it is well settled that mere summary disposal of a Special Leave Petition does not conclude the issue on merits [M/s. Rup Diamonds and others vs. Union of India &Ors., (1989) 2 SCC 356 para 8; Supreme Court Employees’ Welfare Association vs. Union of India and another, (1989) 4 SCC 187 para 22; Yogendra Narayan Chowdhury and others vs. Union of India and others, (1996) 7 SCC 1 para 5] .
    Conclusion-   The decision of the high court under discussion here becomes obiter dicta only when the Supreme Court would has discussed it on merit and set the law. Since the SLP was dismissed in limine the point is still open and no law has been set by the Supreme Court as yet that the High Court indeed has such power to grant maintenance in an application seeking for anticiaptry bail.