• I am a rape case victim - the accused violated bail conditions

I am a rape case victim... the accused was my ex husband... police charged 376 as he tried to sexually assault me after divorce .after the charging of 376 sections the accused approached me and appologised me.. he promised to live with me as husband and wife... believing his promises we filed an affidavit stating i have no objection in granting bail to him and we are willing to live as husband and wife ... consequently he got anticipatory bail...
but after he got anticipatory he attempted to kill me and police charged 308 section against him.. i filed a petition to cancel his bail which was grantd for 376 section.. as he violated the bail condition involving in other offence while on bail...
currently his lawyer filed a counter petition saying his bail cannot be cancelled as he didnt execute any bond nor police has registered his arrest after court granted anticipatory bail...
they brought balan vs state of kerala 2008(3) KLT 753high court ruling as a counter saying his bail cannot be cancelled because he didnt execute any bond..

police didnot asked him to execute bond because they thought his appology was sincere .. 

is there any overrule against balan vs state of kerala 2008??? is there any other option to remand him??? the accused attempted to culpable homicide against me after court granting him bail but he dint execute any bond... pls suggest me is there any option to cancel his bail and remand him?? will balan case judgement affect my case?? is there any ways i could counter this ruling ?? this is my no [deleted]
Asked 5 years ago in Criminal Law
Religion: Muslim

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21 Answers

1. The bail once granted can be cancelled if the conditions mentioned in section 438 crpc like tampering with evidence, threatening the complainant or the witnesses and violating any other special conditions set by the court why granting bail it can very well be cancelled.

2.To apply for cancellation for bail u/s 439 crpc it is not a precondition that the accused person must have furnished bail bond in the meantime. Even prior to that also the bail can be cancelled.

3.The citation relied on by the advocate is not a proper law enunciated by the court and hence it can be called as per incuriam.

4.You can refer Dolat Ram vs State Of Haryana on 24 November, 1994: 1995 SCC (1) 349, JT 1995 (1) 127 which is an authority governing the field of cancellation of anticipatory bail.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
416 Consultations

5.0 on 5.0

1. There was no condition set by the Court for enlarging him on bail for which there was no bond he was ordered to be furnished by the Court.

2. He was granted bail against your consent only and you had expressed that both of you are willing to live like husband and wife. However, there was no condition set by the Court that he shall have to stay with you like your husband otherwise his bail will be cancelled.

3. His act of attempting to kill you is a fresh criminal action from his side for which he should be arrested and at that time PP or your lawyer can strongly object for his availing AB or bail.

4. You have no ruling to counter the Balan judgement in the instant matter.

5. Pursue his second crime against you for sending him behind the bars.

Krishna Kishore Ganguly
Advocate, Kolkata
26831 Answers
726 Consultations

5.0 on 5.0

In any anticipatory bail order there is always a specific word like: upon arrest or police will not arrest... on upon arrest police will release upon arresting him...

Section 308 is not a later or subsequently added..

It is totally different act and should ve seen as two distinct offences.. one he did rape u.. towards which there is already ur affidavit.. but try to muder u is a different story at all.. soo it is a violation of bail provision.

As u said above his advocate has filed reply towards ur petition that police till date that police has not arrested him further need things to clarify is:

1) is ur husband is absconding.. after the incident .

2) whether after granting bail he has not yet surrender to police.

In both cases u will get benefit for further pm mw

Shivam Sood
Advocate, Ludhiana
111 Answers
1 Consultation

4.2 on 5.0

1) you can filed FIR against him saying attempt to kill and provide all evidence what do you have right now.

2) previous scenario is different and this one is totally different, tell police and his lawyer. Take this as separate issue and don't mix with previous one.

Ganesh Kadam
Advocate, Pune
12638 Answers
205 Consultations

4.9 on 5.0

The decision of supreme court holds over all of India.The Balna decisison being passed by the high court is in no comparison with the Dolat Ram Case which is guiding ruling in all the subsequent decisions passed by high court or even supreme court.

The decisison of supreme court is considered of a Law under Article 142 of the Constitution beofre which the decision passed by a high court is nothing.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
416 Consultations

5.0 on 5.0

Negligence of the police in not taking bail bonds do not hamper your case ... When he has again committed fresh incident he not only committed breach of bail orders by court but also committed fresh offence file an private complaint in case police do not take action.

Navdeep Kalair
Advocate, Chandigarh
45 Answers
11 Consultations

4.8 on 5.0

1. Something is missing in your statement.If Court has ordered bail against bond for him, he can not be released without furnishing the required bond.

2. Your are silent on the issue as to why he has not yet been arrested yet based on your serious allegation for which FIR has already been registered against him.which itself is a non-bailable section and is required to be arrested.

3. Once he is arrested for his fresh crime, his bail for the earlier crime also will be liable to be cancelled.

Krishna Kishore Ganguly
Advocate, Kolkata
26831 Answers
726 Consultations

5.0 on 5.0

1) you stick to your point that "he had attempt to kill me".

2) What his lawyer is saying of balan vs state of kerala hc ruling 2008 case support, that he has to show in the court and not in police station. Policemen are to protect society and not pass any judgement or obey on behalf of the court.

Ganesh Kadam
Advocate, Pune
12638 Answers
205 Consultations

4.9 on 5.0

Bail can not be cancelled but you may file a protest petition against the action if police to not imposed 308 of IPC in your second case, in your bail cancellation case the court demand an explanation from you regarding your own affidavit by which you yourself told to the court that you have no objection and both of you live together as husband and wife, so what are the grounds on which the bail can be cancelled, there is any direction in the bail order of the court by which he is restrain to commit further offence. No?????

His bail can not be cancelled by court but the police have power to arrest him in case of change the section from 324 to 308 based on the hurt caused by him to you.

Feel free to call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

Dear Client,

Y go into complication - It`s a clear violation of court order -" he should not involve in any offense while on bail... but after this incident he attempted culpable homicide on me and police charged 308 section "

This ground is sufficient for cancellation of his bail. violation of court order amounts to contempt, no question of bail bond arise. Above condition is declared by court -

The proposition of law laid down by the Supreme Court in "State of Punjab V. Raninder Singh" reported in 2007(3) ECrN 1257 is that the State can move the High Court for cancellation of bail when the accused has violated the condition for granting anticipatory bail under Section 438(2) (i) of the Code of Criminal Procedure

Further, the Hon'ble Supreme Court has made it clear in AIR 2000 SC 1851 and AIR 2001 SC 2023 that power vested in the High Court to cancel the bail can be invoked by State or any aggrieved party. High Court can also exercise the said power suo motu and at the instance of a near relative

Orissa High Court

Nanda Sethi And Two Others vs State Of Orissa on 26 August, 2013

Misc. Case No.890 of 2012

AND i did`t find application of Balan case in ur matter. No mention of bond or alike just anticipatory order ?

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Also reasoning of police that he cannot be re arrested is defunct.

Apex Court in Prahlad Singh Bhati v. N.C.T. Delhi (AIR2001SC1444 thus:- "With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime."

Check link below - Kerala High Court -

http://www.lawweb.in/2014/02/accused-who-is-released-on-bail-for.html

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Anticipatory bail can be cancelled once granted if conditions are violated. You can show the court the violation of bail condition. If the said court doesn't cancel you can move to appellate court for the same. The technical excuses given by his lawyer are no ground to not cancel his bail.

Prashant Nayak
Advocate, Mumbai
28570 Answers
101 Consultations

4.4 on 5.0

you must go to high court and move for an appeal.

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

AB would have been granted based on conditions including bond.

Accused surrender before the magistrate, get bail, execute bond.

If accused didn't undergo such procedure, then police has to arrest and remand the accused.

Then the accused has to apply for regular bail.

If none of the above procedure are followed, then the police is liable for contempt and relevant provisions of police standing orders. You may have to get a direction from high court for the police to arrest and remand as per the AB order.

local police says they cannot re arrest him even if a non bailable offence is added to the same crime.. - Absolutely wrong, police is cheating. If one non bailable offence exists, then the accused should be arrested and remanded to custody. Get the copy of FIR and file a contempt and get a direction to arrest in S.308.

Atlast State Through C.B.I vs Amaramani Tripathi on 26 September, 2005 may be of help to cancel the bail.

Rajaganapathy Ganesan
Advocate, Chennai
2092 Answers
8 Consultations

4.9 on 5.0

1. There is no logic in stating that since he was arrested u/s324 of IPC and enlarged on bail, he can not be arrested any further even if Sec.308 of IPC has been put against him in the FIR registered against him.

2. File a Writ Petition before the High Court against Police inaction praying for a direction upon police to arrest him and produce before the Court for trial for his having committed the said crime for which tyhe FIR has already been lodged by the Police finding prima facies evidence in your said complaint after conducting investigation.

Krishna Kishore Ganguly
Advocate, Kolkata
26831 Answers
726 Consultations

5.0 on 5.0

Bail may be cancelled on the following grounds as per the verdicts of different Courts:

(1) When the person on bail is found tampering with the evidence either during the investigation or during the trial.

(2) When the person on bail commits similar offence or any heinous offence during the period of bail.

(3) When the person on bail has absconded and trial of the case gets delayed on that account.

(4) When it is alleged that the person on bail is terrorizing the witness and committing acts of violence against the police.

(5) When the person on bail creates serious law and order problems in the society and he had become a hazard on the peaceful living of the people.

(6) When it is found that the subsequent events make out a non-bailable offence or a graver offence.

(7) When the High Court found that there was a wrong exercise of judicial discretion to grant the accused bail.

(8) When the circumstances were proved that the accused has misused the liberty granted to him, it is sufficient ground to cancel bail.

(9) If the life of the accused person on bails itself be in danger.

The anticipatory bail can also be cancelled before the regular bail is actually granted.

There are no judgments in sight for the present, you may ask your advocate to counter the same with any other latest judgment suiting your circumstances.

T Kalaiselvan
Advocate, Vellore
80015 Answers
1674 Consultations

5.0 on 5.0

In the anticipatory bail order there was a condition that he should be present when investigating officer calls and he should not involve in any offence while on bail... but after this incident he attempted culpable homicide on me and police chrged 308 section... he didnt execute any bond while he was on bail... though court has ordered to execute bond on his arrest police dint arrest him neither ask him to execute bond as they thought his intention for reconcialition was sincere

Actually after granting of anticipatory bail, he should have been enlarged on regular bail by the concerned court only and not police.

The court which enlarges him shall issue bail bond after the accused complies with the conditions imposed including producing sufficient solvency.

You may confirm this from the court.

T Kalaiselvan
Advocate, Vellore
80015 Answers
1674 Consultations

5.0 on 5.0

The police is right that once he had been enlarged in police bail, they cannot arrest him again just because the charges were altered.

but his lawyer filed a counter petition bringing in support of balan vs state of kerala hc ruling 2008 which says bail cannot be cancelled as police did not make him to execute the bond neither registered his arrest... though once he surrendered before investigating officer , his arrest was nit recorded nor bond was executed... that ws negligence of police...

is there any new ruling to counter and cancel his bail ?

For cancellation of bail, you may look for the citations through your lawyer.

Let your lawyer also do some homework

T Kalaiselvan
Advocate, Vellore
80015 Answers
1674 Consultations

5.0 on 5.0

If these injuries are caused by him subsequently try to file great compliant as that has new cause of action

Navdeep Kalair
Advocate, Chandigarh
45 Answers
11 Consultations

4.8 on 5.0

1. The bail was granted to him in view of your affidavit wherein you did not oppose the grant of bail to the accused. It is not clear from your query as to what were the conditions imposed by the court precedent to the grant of bail to him.

2. Without perusal of the bail order it is very difficult to understand the issue but it seems to me that he was granted bail either on the basis of your consent or he was just granted interim bail wherein the court did not order him to execute a bail bond. If no condition precedent to the grant of bail is set out in the bail order then there is no ground to seek the cancellation of the bail order.

3. Commission of a subsequent offence by the accused when he is out on bail that is unconditional is not a ground to cancel the bail.

4. If and when he applies for anticipatory bail for the subsequent offence of attempt to murder then you may engage your own lawyer to fittingly oppose his bail application on the ground that he is a habitual offender.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. If there was a specific condition set out in the bail order which forbade him to commit another offence while he is out on bail then it is a fit case to seek cancellation of his bail in the first offence.

2. Violation of a condition to not to commit another offence after grant of bail is a ground to seek cancellation of bail even if no bond was executed by the accused,

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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