Dismissed

Dr Gazal v. State of Kerala

Kerala HC2 Nov 2020Bail Appl./6981/2020

Case brief

AI extract

What is this about?

Daily order dismissing the third bail application filed by accused under Section 438 CrPC in a matrimonial case involving Section 498A IPC. The Court held that discretionary jurisdiction under Section 438 CrPC cannot be invoked when the prosecution case shows the accused enjoys another matrimonial relationship while the prior one exists, pending no settlement.

What did the court decide?

The bail application was dismissed.

Dr Gazal Vs State of Kerala — Domestic Violence | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942

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Bail Appl..No.6981 OF 2020

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CRIME NO.908/2020 OF North Parur Police Station , Ernakulam

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APPLICANTS/ACCUSED NOS.1 &2:

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1 DR GAZAL AGED 33 YEARS BENZY HOUSE, TRIKKAVU, PONNANI, MALAPURAM 679577

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2 RAHNA JALAL AGED 53 YEARS BENZY HOUSE, TRIKKAVU, PONNANI, MALAPURAM 679577

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BY ADVS. SRUTHY N. BHAT SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.VIPIN NARAYAN SRI.V.C.SARATH SMT.POOJA PANKAJ SHRI.ABEL TOM BENNY SMT.KIRAN ANTONY SMT.M.A.SHEEBA

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031

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Bail Appl..No.6981/2020

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ADDLR2 RIDHVANA ABDUL KARIM, D/O.ABDUL KARIM, AGED 28 YEARS, RESIDING AT RIDWANA MAHAL, ST.GERMAINS ROAD, NORTH PARAVUR, PIN-683513.

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(ADDL.R2 IS IMPLEADED AS PER ORDER DATED 2.11.2020 IN CRL.M.A.NO.1/2020)

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R1 BY PUBLIC PROSECUTOR R2 BY ADV. LAL K.JOSEPH R2 BY ADV. SRI.A.A.ZIYAD RAHMAN R2 BY ADV. SRI.SURESH SUKUMAR R2 BY ADV. SHRI.SETHU KRISHNA R.S. R2 BY ADV. SHRI.CHACKO MATHEWS K. R2 BY ADV. SMT.T.A.LUXY R2 BY ADV. SRI.ANZIL SALIM

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OTHER PRESENT:

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SRI.RENJITH.T.R., PP, SRI.LAL.K.JOSEPH FOR ADDL.R2

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Bail Appl..No.6981/2020

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O R D E R

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Dated this the 2^nd day of November 2020

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This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C) was heard through Video Conference.

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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.

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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

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Bail Appl..No.6981/2020

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of Rights on Marriage Act 2019 is also alleged against the petitioners.

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Heard the learned Senior counsel Sri. Vijayabhanu for the petitioners and the learned Public Prosecutor.

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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

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Bail Appl..No.6981/2020

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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.

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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.

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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.

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The Public Prosecutor submitted that this Court considered all the contentions of the petitioners while

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Bail Appl..No.6981/2020

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considering the earlier bail application and this Court dismissed the bail application thereafter.

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This is the 3^rd 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 Vs. State of Kerala and Another (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.

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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

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Bail Appl..No.6981/2020

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raised in this bail application. If the prosecution case is correct, the 1^st 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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Sd/-

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P.V.KUNHIKRISHNAN

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JUDGE

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AL/-+

Dr Gazal v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr Gazal v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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