Bail in 420 | All that an NRI needs to know | A-Z guide

Bail in 420: Introduction

Section 420 of The IPC describes a person’s offence who cheats on another individual. Section 420 is cognizable and non- bailable. So how can one avail bail in 420?

According to the IPC, Section 420 affirms that “whoever cheats and thereby dishonestly induces the person deceived to transport any property to any person, or to make, alter or demolish the whole or any part of a valuable security, or anything which is signed or preserved, and which is capable of being converted into a expensive security”, shall be punished with imprisonment of either description for a term which may expanded to seven years, and shall also be accountable to fine.

Bail in 420

Understanding the legal provision

To better recognize the terms of inducement, Section 415 of the IPC describes the offence of Cheating. In simpler terms, Cheating is a dishonest act. One executes it in order to gain some advantage out of it.

Section 420 IPC is a grave form of cheating that includes inducement in terms of delivery of property. It is also pertinent to matters where cheating or enticement cause destruction of the property. Punishment for cheating is under this section which may extend to 7 years. It also makes the person liable to fine.

Essential elements of Section 420

  • Cheating
  • Dishonest inducement to deliver property or to make, modify or destroy any valuable security or something sealed or is capable of being a valuable security 
  • Mens rea (mental awareness of the activity like intention or knowledge) of the accused at the time of manufacturing the inducement
  • Making of a fake representation is one of the essential ingredients to institute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely acceptable to prove that a false representation. But it is further necessary to prove that the depiction was false to the knowledge of the accused. The accused made it in order to deceive the complainant.

How Cheating is to be proved? Bail in 420

You have to establish that there was an intention to cheat at the time of making the misrepresentation; and one has to prove this fact is to be proved on the foundation of all the subsequent conduct as acts and omissions of the accused. Therefore, all the acts and omissions of the charged must be clearly and legibly set out right from the date of making of false representation, till the filing of the grievance.

It must be shown that there is a malfunction of the promise which was made. It must be shown that there was no attempt on the part of accused to perform his promise. The test of sensible man must be applied to appreciate the evidence on record.

How Cheating is to be proved?

Section 138 of Negotiable Instruments Act and Section 420 of IPC

Section 138 of the Negotiable Instruments Act (NI Act) contracts with the offence of dishonor of cheque and presents punishment for the same. On the contrary, section 420 of the Indian Penal Code deals with the felony of cheating. However, in certain situations, the dishonor of cheque can also be considered as an offence of cheating.

For instance, if a person is conscious of the fact that he has insufficient funds in his bank account, however, he still issues a cheque to another individual from whom he has availed any services or purchased any goods, it is clear that he already has knowledge of the fact that the cheque will be dishonored. In such a situation an offence under Section 420 of the IPC can be made out for the dishonor of a cheque.

Bail under Section 420

The best choice is to obtain an anticipatory bail under Section 438 of Criminal Procedural Code, 1973. Regular bail can also be preferred in case the Anticipatory bail is not functional. But, the regular bail is at the judgment of the court in case of a non-bailable offense.

Anticipatory Bail-

The main concern judge takes while granting anticipatory bail in 420 is the existence of Prima-Facie case. That means if on the face of it there seems to be scam or cheating without going to analysis of evidence but if there is fraud then court can decline bail to accused. Bail in 420 then granted on severe condition of pre deposit of money. It’s advisable to engage a capable criminal lawyer once a criminal complaint or FIR has been lodged. Once engaged, a suitable strategy including application for pre-arrest notice, notice bail or anticipatory bail can be chosen.

Once decided, the Lawyer would outline an anticipatory bail mentioning the reasons for bail application and your version of the facts surrounding the matter. Application for bail is then made at a suitable Sessions Court.

When the issue comes up for hearing, the Lawyer must emerge and present the case. If the judge sees the case as fit, anticipatory bail is given to the accused. In case anticipatory bail application is discarded in the Sessions Court, application can be completed in the High Court. If the High Court also discards the bail, application can be prepared in the Supreme Court.

Anticipatory bail- bail in 420

While yielding anticipatory bail, the Court can inflict one or more of the following conditions based on the facts of the particular case:

  • Be accessible for interrogation by the police officer, as and when required
  • Person shall not, openly or indirectly, make any inducement, threat or guarantee to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer
  • Person shall not abscond India without the previous permission of the court
  • Pre deposit cash

Regular Bail-

The court in its prudence may grant regular bail under section 439 CRPC for non-bailable offense, i.e., section 420 IPC. However, the court may inflict the same conditions as are applicable in the case of Anticipatory Bail. However, one has to satisfy the court on the following arguments to grant bail to the accused:

  • Proof for the offense, nature of accusation and the sentence if the conviction occurs
  • There is no danger to complainant, evidence or spectator if the court grants bail
  • The proof shall not raise doubts regarding the charge against or guilt of the offender
  • There shall be doubts with regard to the authenticity of the prosecution’s case

Subsequent Bail Application-

If the Court of Sessions does not award bail, then a subsequent application can be preferred in the similar court. There is no slab in preferring a bail application again in the same court. However, the application will be positioned before the same judge who rejects it. If the position for rejection is not satisfactory, an appeal can be favored against such ground in the High Court. Simultaneously, a subsequent application can also be preferred in the Court of Sessions.

The Subsequent bail application can only be entertained by the court if there is any detection of new events or circumstances. The mere passing of time cannot be taken into thought for granting bail. Also, the dare to the High Court can only be on the reasoning of the court.

In case the High Court relies on the grounds for refusal, then, under Article 136 of the Constitution of India, the last alternative is Apex Court. In other words, Special Leave Petition under Article 136 of the Constitution of India is the last alternative for bail if, High Court rejects the appeal in opposition to the wrong reasoning of the lower court while rejecting the bail application.

Conditions for Bail in 420

There are several other conditions on which the bail can be decided. The following are the circumstances on which the bail can be granted:

No Prima Facie case against the Accused

One of the diverse conditions for granting bail includes that there is no prima facie case against the offender. Excluding the prima facie case, the character and gravity of the offense committed. The Court will not penetrate in the merits of the case while deciding a bail application. When the court is satisfied with this order, then, the court may grant bail in Section 420 IPC as well. The Court can levy certain conditions while yielding the bail, which can be parallel to Anticipatory or regular bail.

Prolonged delay in disposal of Case

If the case under Section 420 IPC is getting postponed, then a right to apply for bail presents upon the person accused of such offense. The conditions for yielding bail as a right in a non-bailable offense are:

  • There is no liability of the person in custody
  • The application pending against the judgment is not disposed within 5 years
  • The court may discharge the person on conditions as it deems fit after the satisfaction of the above conditions. The right to pertain for bail comes from Article 21 of the Constitution of India. Under Article 21, right to a speedy trial is a fundamental right and violation of the same can result in a right to appeal for bail.

FAQ’s for Bail in 420

How can a Lawyer Help in getting Bail?

Getting a bail for a charge under section 420 of the IPC is based on the facts and conditions of the case and on the discretion of the Court. However, hiring a knowledgeable criminal lawyer can increase the chances of getting bail in an offense committed under section 420 of the IPC which is a non-bailable offense. In scenarios like this, it is a hard job to get bail; therefore, it is advisable to engage a lawyer who is expert in handling criminal cases. A capable criminal lawyer can help in drafting a proper and appealing bail application which would, in turn, increase the prospects of bail being granted by the Court.

Also Read: Bail in 498a | A step by step guide for NRI’s to avail Bail under 498a

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