Kerala High Court

Asha Babu vs Jain Paul on 3 June, 2013

Author:
S.S.Satheesachandran

Bench:
S.S.Satheesachandran

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN

MONDAY, THE 3RD DAY OF JUNE 2013/13TH JYAISHTA 1935

Crl.MC.No. 1466 of 2013 (B)
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[CRIME NO. 868/2011 OF THE KURUPPAMPADY POLICE STATION]
...............

PETITIONER/DEFACTO COMPLAINANT:
---------------------------------------------------------

ASHA BABU, SON OF BABU,
ATHANICKAL HOUSE, PERUMANNOOR DESOM,
ERNAKULAM VILLAGE,
ERNAKULAM DISTRICT.

BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE,
ADVS. SRI.S.M.PRASANTH,
SMT.SMITHA GEORGE.

RESPONDENTS/PETITIONER & STATE/ACCUSED:
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1. JAIN PAUL, S/O.KURIAKOSE,
PARUTHIVAYALIL (KALLARACKAL) HOUSE,
KEEZHILLAM KARA, RAMAMANGALAM VILLAGE,
PERUMBAVOOR,ERNAKULAM DISTRICT- 683 545.

2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 011.

R2 BY PUBLIC PROSECUTOR SRI. C. RASHEED.

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 24-05-2013, THE COURT ON 03-06-2013 PASSED THE
FOLLOWING:

Crl.MC.No. 1466 of 2013 (B)
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APPENDIX
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PETITIONERS' ANNEXURE:
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ANNEXURE-A - TRUE COPY OF ORDER DT.7-9-2011 IN M.P.NO.2982 OF 2011 IN
CRIME NO.868 OF 2011 OF THE KURUPPAMPADY
POLICE STATION.

RESPONDENTS' ANNEXURES: NIL.
--------------------------------------------

//TRUE COPY//

P.A. TO JUDGE.

Prv.

S.S.SATHEESACHANDRAN,J.
================================
Crl.M.C.No.1466 OF 2013
================================

Dated this the 3rd day of June,2013

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.

Crl.M.C.1466/2013 2

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

Crl.M.C.1466/2013 3

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. 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.

Crl.M.C.1466/2013 4

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

Crl.M.C.1466/2013 5

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.

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.

Crl.M.C.1466/2013 6

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

Crl.M.C.1466/2013 7

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. 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

Crl.M.C.1466/2013 8

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

Crl.M.C.1466/2013 9

crime. I find petitioner has not made out a case

for cancelling the bail granted to the first

respondent under Annexure A order. Petition is

dismissed.

S.S.SATHEESACHANDRAN
JUDGE

tpl/-