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2013 DIGILAW 438 (KER)

Asha Babu v. Jain Paul

2013-06-03

S.S.SATHEESACHANDRAN

body2013
ORDER : Petitioner is the de facto complainant in Crime No.868/2011 of Kuruppampady Police Station registered for the offence punishable under Section 498A IPC. She has filed the above petition for cancellation of the bail granted to the first respondent (first accused) in the above crime, by Annexure A order dated 7.9.2011 by the Judicial First Class Magistrate, Perumbavoor. First respondent had violated the conditions on which bail was granted by the Magistrate is the case of petitioner for cancellation of his bail, under Section 439(2) read with Section 482 Cr.P.C. 2. The above petition came up for consideration with another petition, an application for bail moved by the first respondent (B.A.3663/2013) in another crime in which he is proceeded as one among the accused. Though arguments were addressed by the respective counsel in both petitions in common the petitions have to be disposed separately since different yardsticks apply in the matter of grant of a bail and of revoking bail already granted. 3. The present petition has been filed to cancel bail granted to the first respondent proceeded as an accused in a crime registered at the instance of the de facto complainant. Petitioner/de facto complainant is the wife of first respondent. Her complaints imputing of matrimonial cruelty by her husband and his close relatives has led to the registration of the above crime for the offence under section 498A IPC. In that crime, it is seen from Annexure A order, after negativing the objections raised by her, which was so done filing an application setting forth the grounds thereof, Magistrate granted bail to the first respondent (first accused) in the crime subject to some conditions. Among other conditions imposed for release of first respondent on bail it was ordered that he should not commit any offence while on bail. First respondent subsequently got involved in another crime while continuing on bail enjoyed under Annexure A order is the crux of petitioner's case to seek for cancellation of his bail. Among other conditions imposed for release of first respondent on bail it was ordered that he should not commit any offence while on bail. First respondent subsequently got involved in another crime while continuing on bail enjoyed under Annexure A order is the crux of petitioner's case to seek for cancellation of his bail. He is involved as an accused in another sessions case, the incident of which occurred even prior to the registration of the crime at the instance of de facto complainant, with the circumstances surrounding that case as well, and, that of the subsequent crime registered against him after his release on bail under Annexure A order are banked upon by petitioner to set forth a case that bail granted to first respondent under Annexure A order has to be cancelled. 4. After hearing the counsel on both sides at length and looking into Annexure A order, I find whatever circumstances surrounding the sessions case in which the first accused is proceeded as an accused had been urged by the petitioner against granting the first respondent bail and after considering the merit of such objections the Magistrate had granted him bail. Whether the first respondent getting involved in another crime as an accused, after getting bail under Annexure-1 order, as such would tantamount to violation of one or other condition imposed for his bail by Magistrate has to be considered. The second crime was registered over an incident which occurred in the court hall of Family Court, Ernakulam. Admittedly, the relationship of de facto complainant and her husband (first respondent) is too bitter and it has given rise to civil and criminal cases. First respondent has filed a petition for divorce, which is stated to be pending consideration. Over the custody of a child born out of the wedlock of the spouses interim orders passed are in force, and on the day fixed for handing over the custody of child to the first respondent (father) he came to the family court with his sister and mother. That day the incident giving rise to the second crime occurred in which the father of de facto complainant is alleged to have been assaulted by the first respondent and his sister. Further allegation is that first respondent has stabbed him with a pen knife and caused him severe injuries. That day the incident giving rise to the second crime occurred in which the father of de facto complainant is alleged to have been assaulted by the first respondent and his sister. Further allegation is that first respondent has stabbed him with a pen knife and caused him severe injuries. After going through the report collected from the judge of the family court with respect to the incident which occurred in the court hall and also the Case Diary and also considering the submissions made by the counsel on both sides and also hearing the counsel for the de facto complainant in the above crime who got impleaded as addl respondent I have disposed of the application for bail moved by the first respondent proceeded as one of the accused in that crime granting him bail subject to conditions. 5. Though learned counsel appearing for petitioner (de facto complainant) referred to various observations made by this court in some of the proceedings wherein first respondent is proceeded as accused in one or other crime such observations cannot have any impact in adjudging the merit of the case canvassed for revoking bail already granted to him. He did not appear before the Sessions Judge for his questioning under Section 313 Cr.P.C in the pending sessions case and that in the matrimonial appeal this Court had given a direction that he should not carry arms when he appear before the family court, but it was violated as seen from the incident in the second crime are highlighted to press the petition. There should be proof that the accused has misused or abused the freedom during the bail. Report sent by the Judge, Family Court prima facie indicate that when the first respondent's sister, allegedly, abused the father of petitioner at the court hall he slapped her and then first respondent intervened and both he and his sister assaulted the father of petitioner. Having regard to that report and taking note of the parameters in adjudging a bail application with other circumstances presented after perusal of the Case Diary in that crime I have granted bail to the first respondent subject to some conditions. When that be so, his involvement in the subsequent crime cannot be set forth as a ground enabling the petitioner to seek for cancellation of bail granted in a previous case. When that be so, his involvement in the subsequent crime cannot be set forth as a ground enabling the petitioner to seek for cancellation of bail granted in a previous case. Consideration over cancellation of bail is different from those of granting bail to an accused person. Where there is reason to hold that the liberty granted by bail has been abused it can be revoked. Normally, in a case of this nature where Magistrate has granted bail that too after giving an opportunity of hearing to petitioner de facto complainant) who intervened and opposed the application for bail filing separate petition, nothing prevented her from moving the Magistrate for cancellation if she has sufficient ground to do so. It goes without saying an opportunity has to be afforded to the accused already released on bail before his bail is cancelled. Violation of facts imputing abusing of0 his freedom while on bail is to be affirmed by the person seeking cancellation of bail providing an opportunity to the accused to controvert it, if he disputed such allegations, filing a counter affidavit. Petitioner has evidently filed this petition before this court to render support to the opposition raised by the de facto complainant (her father) in opposing the bail sought by first petitioner in the crime registered over the incident which occurred in the family court. Though there may be strong suspicious circumstance to show the culpability of the first respondent in mounting a conjoint assault with his sister on petitioner's father at the family court, at this stage, when investigation of the crime registered thereof is pending, I find it cannot be justifiably considered as a circumstance to revoke the bail granted to first respondent in another crime. I find petitioner has not made out a case for canceling the bail granted to the first respondent under Annexure A order. Petition is dismissed.