• Complicated and rare case under sections 376 and 308

I was cruelly harrased by my husband and I am the de facto complainant against him for seven criminal cases including 498, 66e IT act (twice offence repeated and two FIR registered for the same) for defaming me in social media using my photos, 506 for threatening me over phone ,376 for sexual assault against me after pronouncing triple talaq... After police charged rape case against him, their family approached us for settlement and they were pretending nice to us and appologised for everything that happened .. Hence I trusted them and they exploited my innocence.. He managed to get anticipatory bail consequently me filing an affidavit stating no objection in granting bail and we promised before court in the affidavit that we will live together as husband and wife ..he also stated that triple talaq wasnt properly announced and so he wanted to take me back as his wife... I trusted his family's words and I gave 164 statement that all disputes between us have been settled and we are living as husband and wife .. but once he realised he is in safe zone and he got anticipatory bail, he started to manhandle me and beat me after consuming alcohol... he even wanted me to be his secret wife... he threatened me not to inform about our reconcilation in his native place ...three weeks later ( after I gave 164 statement ) he started torturing me and he even tried to commit attempt to culpable homicide on me .. he injured me on my face with sharp glass pieces and I was hospitalised for two days.. finally police has charged the seventh crime on him under section 324 and subsequently they added 308...

Also he violated the conditions in the anticipatory bail which he got under section 376( not to involve in any other offence while on bail ) as seventh crime of 308 registered against him...

I am waiting for the court verdict regarding cancellation of his bail... I have also lodged a case claiming for maintenance...I havent filed domestic violence case as I am advised that I cant claim amount for both maintenance and domestic violence.. I was cruelly harassed and ill treated by him and I still have the scars on my face after that 308 incident... Now I am fighting for my justice but I fear if he will escape from the law as earlier I filed an affidavit believing his false appology...


Police didnt rearrest him on 308 crime as they initially released him on bail charging 324... 308 was subsequently added to the same FIR after I met district police chief ... is there any legal option for police to rearrest him ??? Also since he involved in another offence(308) while on bail will the court cancel his bail and remand him ??? Kindly suggest me the best legal advise for my justice...
Asked 2 years ago in Criminal Law from Thrissur, Kerala
Religion: Muslim

Move an application for cancellation of bail mentioning all the offences he made after getting bail.

Deepanshu Gupta
Advocate, Delhi
9 Answers
1 Consultation

4.0 on 5.0

Hi, if a new offence is made out and a FIR is lodged respectively , he has to take bail from court accordingly as per the procedure Crpc ..your statement of 164 Crpc , will not provide any harm to your new complaint of 324 , 308 IPC , as it was lodged on a new incident of violence .. It is advisable to file a application to cancel his bail in session court , as he is a potential threat to your safety

Hemant Chaudhary
Advocate, Gurgaon
4306 Answers
31 Consultations

4.9 on 5.0

Respected mam...

You have option available to file a petition for cancellations of his anticipatory bail ...As it is your right to oppose this as he is not full filling terms and conditions as well as essential of anticipatory bail which are ... High Court or the court of session may include such conditions in the light of the facts of the particular case, as it may think fit, including

a condition that the person shall make himself available for interrogation by the police officer as and when required;

a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

a condition that the person shall not leave India without the previous permission of the court.....

ADVICE:-Mam plz Don't file a number of cases against his it would be better to fight strongly rather then fighting in many cases and ye be strong ...

Thanku

Dinesh Sharawat
Advocate, Delhi
971 Answers
6 Consultations

4.9 on 5.0

As per Section 439(2) of the Code of Criminal Procedure, a High Court or Court of Session may direct that any person who has been released on bail under Chapter XXXIII (i.e., relating to bail) be arrested and commit him to custody.

A person admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, a High Court has power to stay bail order passed by Session Courts, if it thinks appropriate to do so.

A Court of Session can cancel the bail granted by itself and cannot cancel a bail granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court.

If a Court of Session had admitted an accused to bail, the State may either move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State; or the State may approach the High Court being the Supreme Court under Section 439(2) to commit the accused to custody.

Section 437(5) confers on the High Court the power to cause any person who has been released under Section 437 to be arrested and commit him to custody. Section 439(2) of the Code empowers the High Court to cause any person who has been admitted to bail under Section 439(1) of the Code to be arrested and commit him to custody. The Supreme Court has also power to cancel bail allowed by the High Court if there is a wrong exercise of discretion by the High Court.

Cancellation of bail can be ordered only on stronger grounds, namely, a bail order having been procured on misrepresentation of facts, bench selection, on inadequate improper exercise of discretion by the judges or on the proof of the accused interfering with investigation or trial.

Kishan Dutt Kalaskar
Advocate, Bangalore
4675 Answers
129 Consultations

5.0 on 5.0

You can file DV case against husband seek maintenance, protection order , alternative accommodation from husband

2) Police can arrest him for committing offence under section 308 of IPC

3) it is non bailable offence

4) court can cancel his bail

Ajay Sethi
Advocate, Mumbai
68821 Answers
4143 Consultations

5.0 on 5.0

Mam ...

Police official are right as there is no provision for re arrest mam you have to do just one thing just file a petition in the Hon'ble high court along with annexure of you MLR and FIR and ask court for cancellations of his anticipatory bail ...Mam you have to do efforts else all in vane...

Thanku

Dinesh Sharawat
Advocate, Delhi
971 Answers
6 Consultations

4.9 on 5.0

1. Cancellation of bail can done under many circumstances. He is on only anticipatory bail and not on regular bail.

2. The accused violated the conditions of anticipatory bail which is sufficient to cancel the anticipatory bail and get him arrested immediately as new and serious offence under section 308 is added.

3. Better you approach the prosecutor and get his sympathy and he is the best person to do every thing.

Kishan Dutt Kalaskar
Advocate, Bangalore
4675 Answers
129 Consultations

5.0 on 5.0

1.If you are not satisfied with the present investigation you can file writ petition in high court agaisnt police inaction whereby the IO can be replaced or the investigating agency can be changed.

2.If subsequent to his getting bail he commits further offence and FIR is registered in that account you will have a good case for cancellation of bail.

3.In the writ petition for police inaction also you can press for his arrest.

Devajyoti Barman
Advocate, Kolkata
18104 Answers
260 Consultations

5.0 on 5.0

Hello,

It is advised that in furtherance of section 439(2) you approach the High Court and apply for cancellation of the AB bail of your husband, describing thereupon the nature of the crime.

Anilesh Tewari
Advocate, New Delhi
17259 Answers
266 Consultations

5.0 on 5.0

Since new offence u/s 308 has been added and he has flouted with the conditions of the AB therefore you have a strong case to file a petition for cancellation of the AB.

There is no provision of re-arrest as such

Contact a local lawyer

Anilesh Tewari
Advocate, New Delhi
17259 Answers
266 Consultations

5.0 on 5.0

Hi

Yes there are very high chances that his bail will be cancelled and also you are advised to mention all the incidents happened with you in the court during your evidence, these incidents are suffecient to get him convicted and 324 may be altered to more serious sections at the later stage after your evidence and on the basis of your evidences.

Thank You

Rahul Jatain
Advocate, Rohtak
951 Answers
3 Consultations

4.9 on 5.0

If 308 added again he has to get bail for that sec. Also

P V Reddy
Advocate, Hyderabad
422 Answers
3 Consultations

4.0 on 5.0

You can even now approach the court which granted him bail to cancel his bail for the reason that he violated the conditions granting him bail by indulging in the atrocious acts for which he as booked earlier.

In your application you may also state that you were forced to give the earlier affidavit on the pretext of living together a cordial and harmonious life whereas once he was released on bail, he again showed his original color and assaulted you brutally to the extent of even murdering you or harming you grievously.

There is nothing wrong in taking back your earlier statement which was given under false promises or assurances.

Further there is no bar in claiming maintenance under DV act also even though ther is a maintenance case pending under section 125 cr.p.c.

T Kalaiselvan
Advocate, Vellore
58651 Answers
743 Consultations

5.0 on 5.0

If he has been released on station bail and another section has been added subsequently in the charge sheet after inquiry, it is the discretion of the po0lice,m generally when he is already enlarged on bail, the police may just submit the charge sheet to the court.

However you can file a petition before the court narrating the incidents after enlarged on AB and produce the copy of the FIR, medical treatment particulars and other details seeking to cancel the anticipatory bail granted to him earlier, for violating the conditions of bail.

T Kalaiselvan
Advocate, Vellore
58651 Answers
743 Consultations

5.0 on 5.0

1. If the conditions precedent to the grant of AB have been violated then you are free to file a petition for cancellation of his bail which may receive a favourable consideration at the hands of the court.

2. Commission of a fresh offence by him after obtaining AB shows that he has abused and misused the concession of AB granted to him. So apply for cancellation of his AB forthwith.

3. Nothing stops you though from availing your remedies under DV Act.

Ashish Davessar
Advocate, Jaipur
26653 Answers
797 Consultations

5.0 on 5.0

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