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Gazal v. State Of Kerala
Factual and Procedural Background
The petitioners, accused in Crime No. 908/2020 registered at North Paravur Police Station, face allegations under Sections 498A read with Section 34 of the Indian Penal Code and Sections 4 and 2(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019. The prosecution alleges mental and physical harassment of the defacto complainant by the petitioners, neglect of the complainant, and that the first petitioner has remarried despite an existing matrimonial relationship. The petitioners filed this bail application under Section 438 of the Criminal Procedure Code (Cr.P.C). This is the third such bail application filed by the petitioners, following earlier applications that were either withdrawn or dismissed after detailed consideration. The defacto complainant was impleaded in the present application and opposed the grant of bail, asserting no change in circumstances since the last application.
Legal Issues Presented
- Whether the petitioners are entitled to anticipatory bail under Section 438 Cr.P.C. given the allegations of matrimonial offences and remarriage during the subsistence of the prior marriage.
- Whether discretionary jurisdiction under Section 438 Cr.P.C. can be exercised in cases involving allegations of harassment and violation of the Muslim Women (Protection of Rights on Marriage) Act, 2019.
- Whether humanitarian considerations and the nature of matrimonial offences justify a lenient view in granting bail.
Arguments of the Parties
Petitioners' Arguments
- The case against the petitioners is false and politically motivated.
- The second petitioner is an elderly woman and the mother of the first petitioner.
- The first petitioner, a doctor by profession, had no relationship with the defacto complainant for two to three years prior to the allegations.
- The bail application should be considered on humanitarian grounds.
- Matrimonial offences warrant a lenient approach by the bail court.
- The petitioners are willing to comply with any conditions imposed by the Court if bail is granted.
- Custodial interrogation is unnecessary in such cases.
- Arresting the petitioners could permanently close chances for settlement.
- There is a child from the wedlock who is with the defacto complainant, and the petitioners have been denied access to the child.
Defacto Complainant's Arguments
- The Court has already considered these aspects and dismissed the earlier bail application.
- There is no change in circumstances warranting reconsideration of bail.
Prosecution's Arguments
- The Court has already considered all contentions raised by the petitioners in the earlier bail application and dismissed it.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nahas v. State Of Kerala (2020 (4) KHC 586) | Requirement of proper pleadings for bail applications under Section 438 Cr.P.C. | Earlier bail application was withdrawn due to lack of proper pleadings as per this precedent; subsequent applications complied with this requirement. |
Court's Reasoning and Analysis
The Court noted that this is the third bail application filed under Section 438 Cr.P.C. The first was withdrawn for lack of pleadings in accordance with the precedent set in Nahas v. State Of Kerala. The second bail application was considered in detail and dismissed after hearing all contentions. The present application reiterates the same contentions without any change in circumstances. The Court observed that if the prosecution's allegations are true, the first petitioner is cohabiting with a second wife despite an existing matrimonial relationship with the defacto complainant. Given these facts, the Court held that the discretionary jurisdiction under Section 438 Cr.P.C. cannot be invoked to grant anticipatory bail. The Court found no reason to deviate from its earlier conclusions and dismissed the bail application accordingly.
Holding and Implications
The bail application under Section 438 Cr.P.C. is dismissed.
The direct effect of this decision is the denial of anticipatory bail to the petitioners in the ongoing criminal case. The Court reaffirmed its earlier stance and declined to exercise discretionary jurisdiction in light of the serious allegations and the absence of changed circumstances. No new legal precedent was established by this ruling.
P.V. Kunhikrishnan, J.:— This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C) was heard through Video Conference.
2. Petitioners are the accused in Crime No. 908/2020 of North Paravur Police Station. The above case is registered alleging offences punishable under Sections 498A r/w Section 34 of the IPC. The offence under Section 4 and Section 2(c) of the Muslim Women (Protection of Rights on Marriage) Act 2019 is also alleged.
3. The prosecution case is that the petitioners mentally and physically harassed the defacto complainant. It is also alleged that the first petitioner now married again. The petitioners are neglecting the defacto complainant. It is also alleged that Section 4 of the Muslim Women Protection of Rights on Marriage Act 2019 is also alleged against the petitioners.
4. Heard the learned Senior counsel Sri. Vijayabhanu for the petitioners and the learned Public Prosecutor.
5. The Senior counsel for the petitioners submitted that it is a false case foisted against the petitioners. The second petitioner is the mother of the first petitioner. She is an old lady. The counsel submitted that the first petitioner is a doctor by profession. There was no relationship between the first petitioner and the defacto complainant for about two to three years. The Senior counsel submitted that it is a false case foisted against the petitioners when the first petitioner married again. The counsel submitted that this bail application should be considered at least on humanitarian consideration. The Senior counsel also submitted that it is a matrimonial offence. It is a settled position that the bail court should take a lenient view. The Senior counsel submitted that the petitioners are ready to abide any conditions if this Court grant them bail. The Senior counsel also submitted that the custodial interrogation of the petitioners may not be necessary in these types of cases. The Senior counsel submitted that if the petitioners are arrested, the chances for settling the issue also will be permanently closed.
6. The Senior counsel also submitted that there is a child in the wedlock to the first petitioner and the defacto complainant. The child is with the defacto complainant. The Senior counsel submitted that the petitioners were not even allowed to see the child.
7. The defacto complainant filed an application for impleadment. The impleading petition is allowed. The defacto complainant submitted that this Court already considered all these aspects and dismissed the bail application. There is no change of circumstances.
8. The Public Prosecutor submitted that this Court considered all the contentions of the petitioners while considering the earlier bail application and this Court dismissed the bail application thereafter.
9. This is the 3 bail application filed under Section 438 Cr.P.C. The Bail Application No. 5748/2020 was withdrawn because there was no pleadings as per the decision of this Court in Nahas v. State Of Kerala (2020 (4), KHC 586). Subsequently, with the proper pleadings, B.A.5944/2020 was filed and this Court issued notice to the defacto complainant. The defacto complainant appeared. The bail application was argued in detail by the counsel narrating all the aspects. The counsel raised all the contentions in B.A. No. 5944/2020 and this Court was not inclined to grant bail. Thereafter the counsel submitted that he wants to withdraw that bail application because there is a chance for settlement.
10. Now, this bail application is filed stating that the matter is not settled. The same contentions which is raised by the petitioners before this Court in B.A.5944/2020 is raised in this bail application. If the prosecution case is correct, the 1 petitioner is now enjoying with his second wife when the matrimonial relationship with the defacto complainant is in existence. Discretionary jurisdiction under Section 438 Cr.P.C can't be invoked in such cases. I see no reason to allow this bail application. This bail application is therefore dismissed.
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