Dr Gazal And Anr vs State Of Kerala

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

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.

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.

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

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.

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.

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.

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.

This is the 3rd 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.

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 1st 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.