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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2019
BEFORE
THE HON’BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.9194/2018
c/w
CRIMINAL PETITION NO.9216/2018
IN CRIMINAL PETITION NO.9194/2018:
BETWEEN :
1. Sri Pradeep Raja G.,
Aged about 32 years
S/o Gururaja L.
R/o No.3, Old Madiwala
Opposite to Sandya Theatre
Bengaluru-560 068.
2. Sri Gayathri Devi P.S.
Aged about 52 years
W/o Gururaja L.
R/o No.3, Old Madiwala
Opposite to Sandya Theatre
Bengaluru-560 068.
… Petitioners
(By Smt. Sheetal Soni, Advocate
Sri Koushik Raja, Advocate
Sri Gangadhara B.K., Advocate)
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AND :
1. The State of Karnataka
by Women’s Police Station,
Tumakuru,
Represented by State Public Prosecutor
High Court Building
Bengaluru-560 001.
2. Smt. Kiran Niveditha
Aged about 27 years
Balaji Nivas, 2nd Cross
Sapthagiri Layout
Tumakuru-572 101
… Respondents
(By Smt. Namitha Mahesh B.G., HCGP for R1;
Smt. Kiran Niveditha, Party-in-Person for R2)
This Criminal Petition is filed under Section 438
R/W. Section 482 of Cr.P.C praying to set aside the
order dated 05.12.2018 passed in Crl.Misc.No.322/2018
of the 1st Additional District and Sessions Judge at
Tumakuru, with respect to the petitioners Nos.1 and 2
herein, vide Annexure-A and may be pleased to restore
the anticipatory bail given to petitioners Nos.1 and 2
herein vide order dated 10.04.2018 produced as
Annexure-D.
IN CRIMINAL PETITION NO.9216/2018:
BETWEEN :
Kiran Niveditha
D/o K.B. Thimmaraju
Aged about 27 years
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Residing at Balaji Nivas
Behind Saptagiri College
2nd Cross, Saptagiri Ext.
Tumakuru-572 102.
… Petitioner
(By Smt. Kiran Niveditha, Party-In-Person)
AND :
1. The State of Karnataka
by Women’s Police Station,
Tumakuru,
Represented by State Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.
2. L. Gururaja
S/o H. Lakshman
Aged about 62 years
R/at No.3, Infront of Iyangar Bakery
Near Sandya Theater
Old Madivala Road, BTM Layout,
Bengaluru-560 068.
3. Suresh Babu S/o Veerappa
Aged about 48 years
R/at No.25, EWS Colony
BTM 2nd State
Bangalore-560 068.
4. G. Kowshik S/o L. Gururaja
Aged about 24 years
R/at No.3, In front of Iyangar Bakery
Near Sandya Theater
Old Madivala Road, BTM. Layout,
Bengaluru-560 068.
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5. Jagadeesh
S/o Thyagaraj
Aged about 44 years
R/at No.106/5-B, 1st Floor
Tata Silk Form, 2nd Cross
Bangalore-560 004.
… Respondents
(By Smt. Namitha Mahesh B.G., HCGP for R1;
Smt. Jayna Kothari, Senior Counsel for
Sri Rohan Kothari and Sri Naveen Chandra V.,
Advocates for R2 to R5)
This Criminal Petition is filed under Section 439(2)
of Cr.P.C praying to cancel the bail granted to accused
No.2, accused No.4, accused No.5 and accused No.6 in
Crl.Misc.No.322/2018, Crime No.27/2018 of Women’s
Police Station, Tumakuru, on the file of the 1st Additional
District and Sessions Judge at Tumakuru, for the
offences punishable under Sections 498A, 417, 418, 504,
506, 377 and 354C r/w Section 34 of Indian penal Code
and Sections 3 and 4 of Dowry Prohibition Act.
These Criminal Petitions having been heard and
reserved on 20.02.2019 coming on for pronouncement of
orders this day, the Court made the following:-
ORDER
By the order dated 5.12.2018, the I Additional
District and Sessions Court, Tumakuru in
Crl.Mis.No.322/2018 by partly allowing the application
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filed by the complainant praying for cancellation of
anticipatory bail granted by the said Court to accused
Nos.1 to 6 on 10.4.2018, cancelled the bail granted in
favour of accused Nos.1 and 3. Accused Nos.1 and 3,
being aggrieved by the said cancellation of anticipatory
bail to them, preferred Criminal Petition No.9194/2018,
whereas being aggrieved by non-considering of the
prayer of the complainant for cancellation of anticipatory
bail granted to accused Nos.2, 4, 5 and 6, the
complainant has preferred Criminal Petition
No.9216/2018.
2. I have heard Smt. Sheetal Soni, learned counsel
appearing for accused Nos.1 and 3-petitioners in Criminal
Petition No.9194/2018; Smt.Jayna Kothari, learned
Senior Counsel for accused-respondents in Criminal
Petition No.9216/2018; Smt.Namitha Mahesh B.G.,
learned HCGP for the respondent-State and the
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complainant/party-in-person, the petitioner in Criminal
Petition No.9216/2018.
3. It is the submission of the learned Senior
Counsel that the order passed by the trial Court
canceling the anticipatory bail granted in favour of
accused Nos.1 and 3 is erroneous. Without considering
the legal position, the trial Court has swayed away by the
submissions made by the complainant and the learned
Public Prosecutor. She further submitted that there is no
breach of any of the conditions imposed while granting
the anticipatory bail. Without any breach of the
conditions by accused Nos.1 and 3, the trial Court ought
not to have cancelled the bail granted to them. She
further submitted that there are no allegations as against
any of the accused to show that they have threatened
the witnesses. It is the counsel who has uttered some
words and the matter was taken to the Police Station by
the complainant, where in the presence of the
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complainant the said complaint was closed. The said
aspect which has been relied upon by the trial Court is
not justifiable. She further submitted that the
Investigating Officers and incharge Officers of the Police
Station have filed their affidavits to the effect that all the
accused persons including accused No.3 used to attend
the Police Station as per the conditions and have marked
their attendance. But in spite of the same, the trial Court
has ventured to compare the signatures with that of
vakalat and has come to a wrong conclusion that the
signature found in the Register is not tallying and as such
accused No.3 has not attended the Police Station. By
referring to Section 73 of the Indian Evidence Act, she
further submitted that the trial Court ought not to have
compared the signature with its eyes and expressed its
opinion. She further submitted that although there is no
legal bar to a judge using bare eyes to compare the
signatures without the aid of the expert, as a matter of
prudence and caution, the judge hesitates to base his
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finding with regard to the identification of the signatures
which forms the sheet-anchor of the prosecution case
solely on comparison made by himself. In order to
substantiate her contention, she relied upon the decision
in the case of State (Delhi Administration) Vs.Pali
Ram, reported in AIR 1979 SC 14. She also relied upon
the decision in the case of O.Bharathan Vs.
K.Sudhakaran another, reported in AIR 1996 SC
1140. She further submitted that during the course of
investigation, if the Investigating Officer has not
apprehended the accused and there is no evidence to
show that the witnesses have hampered the evidence
though they were having best opportunity, these facts
are to be considered while considering the bail
application. After filing of the charge sheet usually the
Court cannot cancel the bail when there is no material to
show that there is tampering of the evidence. In order to
substantiate her contention, she relied upon the decision
in the case of Dataram Singh Vs. State of Uttar
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Pradesh another, reported in AIR 2018 SC 980.
She further submitted that rejection of the bail in a non-
bailable offence is different from cancellation of the bail
so granted. Very cogent overwhelming circumstances are
necessary for an order directing the cancellation of the
bail already granted. Usually the Courts will not interfere
with the bail granted and cancel mechanically without
considering whether any supervening circumstances have
rendered it no longer conducive to a fair trial to cancel
the bail. In order to substantiate her contention, she
relied upon the decision in the case of Dolat Ram
others Vs. State of Haryana, reported in (1995)1 SCC
349. She further submitted that a separate petition is
not maintainable for the purpose of cancellation of bail.
Already the Court which has passed the order becomes
functuous officio to entertain a separate petition. If at all
any application has to be filed, it should be filed in a
same petition. The parameters which are to be taken
into consideration by the Court have been discussed by
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the Hon’ble Apex Court and the said parameters have to
be followed by the Court. In order to substantiate the
said contention, she relied upon the decisions in the case
of State of Haryana Vs. Jagbir Singh another,
reported in AIR 2003 SC 4377 and in the case of
Rajesh Sharma others Vs. State of U.P. another
reported in AIR 2017 SC 3869. She further submitted
that the Court should not go for cancellation of the bail
and such tendency of the parties has to be discouraged.
She further submitted that the photographs which have
been produced are only to rebut the allegations made as
against the accused and they have been produced in a
judicial proceeding. No prejudice or hardship has been
caused and they have not been produced to defame the
complainant. On these grounds, the learned Senior
Counsel appearing for the respondents in Criminal
Petition No.9216/2018 and the learned counsel appearing
for accused Nos.1 and 3-petitioners in Criminal Petition
No.9194/2018 prayed to allow the petition filed by
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accused Nos.1 and 3 by granting bail to them and
dismiss the petition filed by the complainant.
4. Per contra, the learned HCGP vehemently argued
and submitted that accused No.3 has not followed the
conditions imposed while she was released on bail. She
has not marked her attendance before the Police Station
but the documents have been concocted to show that
actually she has complied with the conditions and
attended the Police Station and as and when she visited
she has signed in the Register. She further submitted
that she is illiterate, the signature which has been put by
her is in English that itself clearly goes to show that
accused No.3 has not visited the Police Station and
marked her attendance. When the documents have been
tampered and there is no compliance of the order of the
bail, then the bail has to be cancelled. By relying upon
the decision in the case of Murari lal Vs. State of
Madhya Pradesh, reported in 1980(1)SCC 704, she
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further submitted that the Court is having every power to
compare the signatures and on comparison if the Court
comes to the conclusion that the signature is not that of
the accused, an adverse inference can be drawn to the
effect that the said accused has not attended the Police
Station and there is a violation of breach of condition.
5. She further submitted that accused No.1 through
his advocate threatened the complainant in the premises
of the Family Court that itself amounts to nothing but
tampering with the prosecution evidence. Though it is
contended by the learned counsel for accused No.1 that
accused No.1 is nothing to do with the act of his
advocate, he was present when his advocate threatened
the complainant. She further submitted that a complaint
was also registered and after recording the statement of
the learned advocate and the complainant the complaint
came to be closed. The trial Court after considering the
said facts, has rightly cancelled the bail granted to
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accused Nos.1 and 3. She further submitted that the
trial Court was wrong in cancelling the bail granted to
accused Nos.1 and 3 alone. The other accused persons
were also present and only at the instigation of the
accused persons, the learned counsel appearing on
behalf of them has threatened the complainant. In that
light, the order passed by the trial Court in not cancelling
the bail to the remaining accused persons is not
sustainable and requires to be interfered with by this
Court in so far as the said aspect is concerned. She
further submitted that if Court finds that there are
grounds of cancellation of bail, the Court is having every
right to cancel the bail. In order to substantiate her said
contention, she relied upon the decision in the case of
Mehboob Dawood Shaikh Vs. State of Maharashtra,
reported in (2004)2 SCC 362. She further submitted
that accused circulated the photographs deliberately to
affect the prestige and privilege of the complainant and
with an intention to defame her. If at all that was the
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defence, they ought to have produced such photographs
at relevant time when the case is posted for evidence.
On these grounds, she prayed to dismiss the petition
filed by accused Nos.1 and 3 and allow the petition filed
by the complainant and to cancel the bail in respect of
other accused persons.
6. Complainant who is a party-in-person is present
before the Court. By supporting the arguments of the
learned HCGP she submitted that the accused have taken
a contradictory objections by suppressing the real facts.
She further submitted that accused have posted obscene
photographs of the complainant and they threatened the
complainant over phone. She further submitted that the
accused persons have produced disseminating
photographs to demolish her prestige. On these
grounds, she also prayed to dismiss the petition filed by
accused Nos.1 and 3 and allow the petition filed by her.
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7. I have carefully and cautiously gone through the
submissions made by the learned counsel appearing for
the parties and the complainant-party-in-person and
perused the records.
8. Several grounds have been urged in both the
petitions. It is contended by the learned senior counsel
for accused Nos.1 and 3 that the trial Court has
committed a serious error in cancelling the bail to
accused Nos.1 and 3. What are the factors to be kept in
mind while considering the bail application relating to
heinous offences have been indicated by the Hon’ble
Apex Court in the case of Prasanta Kumar Sarkar Vs.
Ashis Chaterjee another, reported in (2010)14
SCC 496, wherein by relying on its earlier decisions in
the case of State of U.P. Vs. Amarmani Tripathi,
reported in (2005)8 SCC 21 and in the case of Ram
Govind Upadhyay Vs. Sudarshan Singh reported in
(2002)3 SCC 598, the Hon’ble Apex Court has indicated
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the following factors to be borne in mind while
considering the bail application:-
i) Whether there is any prima facie or
reasonable ground to believe that the
accused had committed the offence;
ii) nature and gravity of the accusation;
iii) severity of the punishment in the event
of conviction;
iv) danger of the accused absconding or
fleeing, if released on bail;
v) character, behaviour, means, position
and standing of the accused;
vi) likelihood of the offence being
repeated;
vii) reasonable apprehension of the
witnesses being influenced; and
viii) danger, of course, of justice being
thwarted by grant of bail.
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9. While granting the bail, the Court should not
grant bail mechanically. Even very recently the Hon’ble
Apex Court in the case of Siddharam Satlingappa
Mhetre Vs. State of Maharashtra and others,
reported in (2011) 1 SCC 694 has observed and
considered as to what are the parameters which the
Court has to keep in mind while considering the bail
application. The main object of imposition of the
conditions is that the accused should not tamper with the
prosecution evidence; he should not abscond or he
should not flee away from justice.
10. The Hon’ble Apex Court in the case of Dolat
Ram others Vs. State of Haryana, (cited supra),
has reiterated that rejection of bail in a non-bailable case
at the initial stage and cancellation of bail already
granted have to be considered and dealt with in different
basis. It is further held that very cogent and
overwhelming circumstances are necessary for directing
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cancellation of bail already granted. The said decision
has been followed by the Hon’ble Apex Court, in two
subsequent decisions in the case of Subhendu Mishra
Vs. Subrat Kumar Mishra another, reported in AIR
1999 SC 3026 and in the case of Samarendra Nath
Bhattacharjee Vs. State of West Bengal another,
reported in AIR 2004 SC 4207. In Dolat Ram’s Case
at paragraph-4 it is held as under:-
“4. Rejection of bail in a non-bailable case
at the initial stage and the cancellation of
bail so granted, have to be considered and
dealt with on different basis. Very cogent
and overwhelming circumstances are
necessary for an order directing the
cancellation of the bail, already granted.
Generally speaking, the grounds for
cancellation of bail, broadly (illustrative and
not exhaustive) are: interference or attempt
to interfere with the due course of
administration of justice, or evasion or
attempt to evade the due course of justice
or abuse of the concession granted to the
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accused in any manner. The satisfaction of
the court, on the basis of material placed on
the record of the possibility of the accused
absconding is yet another reason justifying
the cancellation of bail. However, bail once
granted should not be cancelled in a
mechanical manner without considering
whether any supervening circumstances
have rendered it no longer conducive to a
fair trial to allow the accused to retain his
freedom by enjoying the concession of bail
during the trial. These principles, it appears,
were lost sight of by the High Court when it
decided to cancel the bail, already granted.
The High Court it appears to us overlooked
the distinction of the factors relevant for
rejecting bail in a non-bailable case in the
first instance and the cancellation of bail
already granted.”
11. It is true that the accused persons in the
present case have been enjoying the benefit of bail
granted to them by the trial Court. However, it is the
contention of the learned Senior Counsel that there is no
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violation of the bail conditions. But it is the contention of
the learned HCGP and the complainant-party-in-person
that there is violation of bail condition, tampering with
the prosecution evidence by disseminating the
photographs and giving threat to the complainant.
12. In that light, let me consider the case on hand.
The first and foremost aspect is that by producing the
photographs in the case before the Court below, the
accused persons are tampering the case of the
prosecution evidence. But it is the case of the accused
Nos.1 and 3 that in order to defend themselves from the
allegation made against accused No.1, the production of
said documents was as a rebuttal to the allegation made
in the case. I have carefully and cautiously gone through
the submissions of the parties and perused the entire
records. No doubt some photographs have been
produced in the said case before the Court below. As to
how and in what manner it is going to tamper the
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prosecution evidence is not forthcoming. The said
documents are in the form of photographs. If at all the
said documents are defaming or affecting the prestige
and privilege of the complainant, then under such
circumstances she has to establish the said fact only for
the purpose of claiming the damages. Even she has to
prove as to how those documents produced in the case
are noticed and published in the public, that too when
they have been produced in judicial proceedings. In that
light, the said contention taken up by the complainant is
not acceptable.
13. The second contention is that the learned
counsel appearing on behalf of accused No.1 has
threatened the complainant and in this behalf a
complaint was registered by the jurisdictional police. On
going through the said records, there is an allegation to
the effect that the learned counsel while going out of the
Court has threatened the complainant. But subsequently,
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the Investigating Officer called both the parties and after
recording their statements the complaint came to be
closed. With the consent of both the parties, when the
complaint has been closed on the basis of the
undertaking given by the parties and the advocates, then
under such circumstance, it will not be a ground to cancel
the bail. In that light, the said contention is also not
acceptable.
14. The third aspect which has been dealt in by the
complainant is that accused No.3 has not appeared
before the Police Station and has not marked her
attendance and the one which has been marked does not
belong to her and the signature found in the Register are
not belonging to her and as such there is a breach of
condition. The trial Court after considering the said facts
and comparing the signature, has come to the conclusion
that the said signature does not tally with that of the
signature of accused No.3. Though during the course of
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arguments, the learned counsel appearing for the parties
have strenuously by referring to Section 73 of the Indian
Evidence Act, have contended that the Court is having a
power to compare the signature with bare eyes and form
an opinion. Whereas, the learned Senior Counsel for the
accused by relying upon the decision of the Hon’ble Apex
Court submitted that the Court cannot compare the
specimen signature and comparison of such signature in
a proceeding by the Court with bare eyes is not
advisable. But that is not the real issue before the Court.
How the non-appearing of accused No.3 before the
concerned Police Station and marking the attendance is
going to affect the case of the prosecution or the
complainant has to be looked into. Records also indicate
the fact that the police officials who were working in the
said Police Station have filed their affidavit to the effect
that accused No.3 has appeared before the Police Station
and she has marked her attendance. But the Court by
comparing the signature has come to the conclusion that
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accused No.3 has not appeared before the Police Station
and the signatures in the Register are not that of accused
No.3. But the real point has been missed by both the
parties. The said conditions imposed by the Court is only
with an intention to see that accused persons should not
abscond and they must be available for trial by retaining
the freedom of enjoying their rights during the trial. This
aspect of the matter has been lost by the trial Court.
When it has decided to cancel the bail already granted, it
appears that it overlooked the distinction of factors
relevant for rejecting the bail or cancellation of the bail in
a non-bailable case, which has already been granted. No
material has been produced to show that there are very
cogent and overwhelming circumstances with the
abovesaid facts for cancellation of the bail. Non-marking
of the attendance and production of the documents in a
case are not the criteria which the Court has to keep in
mind for cancellation of bail.
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15. Usually in the matrimonial cases it is but
natural that each of the spouse making different
allegations only with an intention to see that by one or
the other way, one of the spouse should be put to
inconvenience and he or she should be harassed. It is
also necessary to see that whether the act of the accused
pressurizes the witnesses and manipulates the evidence
of either of the parties to the proceedings. Granting of
bail and imposition of conditions is to regulate and check
the manipulation of the evidence by either of the parties
to the proceedings. It is enforcing authority who has to
look into the matter, whether any such situations are
existing, then they can file an application for cancellation
of the bail. In the instant case, the Investigating Officers
have filed their affidavit contending that accused No.3
has appeared before the Police Station and marked her
attendance. But the Court below has stepped into the
shoes of the Investigating Authority and gone into
comparing the signatures as if it is a full proof for the
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purpose of deciding a case and has wrongly come to the
conclusion without keeping in view the object and
purpose of imposition of conditions and has cancelled the
bail in respect of accused No.3 without there being any
discussion. Even if she has not marked her attendance,
how it is going to prejudice the case of the complainant.
That itself clearly goes to show that the complainant is
only intending to harass accused No.3. If really the
complainant is serious about breach of condition,
definitely she ought not to have compromised when
advocate gave a threat to her and a complaint was
registered. But after compromising, filing of petition for
cancellation of bail itself shows that subsequently on
deliberation and discussion only with mala fide intention
such an application has been filed. From this angle, the
Court below was not justified in cancelling the bail
granted to accused Nos.1 and 3. As held in the case of
Dolat Ram others Vs. State of Haryana (cited
supra), it has been observed that for the purpose of
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cancellation of bail which has already been granted, very
cogent and overwhelming circumstances are necessary
and if no such circumstances are existing or there are no
interference or attempt to interfere with the due course
of administration of justice or evasion or attempt of
evade the due course of justice or abuse of the
concession granted to the accused in any manner. The
Court after satisfying itself has to cancel the bail. The
technicalities should be kept in mind by the Court. In
that light, the Court below has lost sight of and
proceeded to cancel the bail which has already been
granted. It appears that the Court below overlooked the
distinction of the factors relevant for rejecting the bail in
a non-bailable case and passed the impugned order.
Looking from any angle, the order of the trial Court
appears to be perverse and not in accordance with law.
In that light, it requires interference by this Court.
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Taking into consideration the aforesaid facts and
circumstances, Criminal Petition No.9194/2018 filed by
accused Nos.1 and 3 is allowed. Impugned Order dated
5.12.2018, passed by the I Additional District and
Sessions Court, Tumakuru in Crl.Mis.No.322/2018, to the
extent of cancellation of bail in respect of accused Nos.1
and 3 is set aside and the earlier bail granted to them is
restored.
Accused Nos.1 and 3, i.e., petitioners in Criminal
Petition No.9194/2018 shall execute a fresh bail bond in
terms of the earlier order. It is made clear that accused
Nos.1 and 3 shall not further involve in such activities so
as to hamper or interfere with the trial of the case.
Criminal Petition No.9216/2018 filed by the
complainant is dismissed as devoid of merits.
Consequently, I.A.No.1/2018 filed in Criminal
Petition No.9194/2018 stands dismissed.
Sd/-
*ck/- JUDGE