IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADE FRIDAY, THE THIRTEENTH DAY OF JUNE, TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE DR. JUSTICE B. SIVA SANKARA RAO CRL.P.No. 5813 of 2014 Between:
Gandam Swamy, S/o. G. Subba Rao AND Petitioner/Accused No.1 The State of A.P., rep. by its Public Prosecutor, Andhra Pradesh, Hyderabad Respondent/Complainant COUNSEL FOR THE PETITIONER: SMT. J. SUMATHI COUNSEL FOR THE RESPONDENT: THE ADDL. PUBLIC PROSECUTOR Petition under Section 439 of Cr.P.C., praying that in the circumstances stated in the memorandum of grounds filed herein, the High Court may be pleased to enlarge the petitioner on bail in Cr.No.424 of 2014 in P.S. KPHB, pending enquiry and trial.
The Court made the following Order:
“The Criminal Petition is filed under Sections 437 and 439 Cr.P.C by the petitioner/A-1 in Crime No.424/2014 of K.P.H.B Police Station, registered for the offences punishable U/Sections 370 –A (2) of IPC and Section 3 to 6 of PIT Act.
2. Heard the Learned Counsel for the Petitioner, the Learned Additional Public Prosecutor for the Respondent-State and perused the material placed on record.
3. It is the contention of the petitioner that he is in judicial custody since 03.05.2014 and he is innocent of the false accusation as if he is running brothel house at flat kept where he secured the LW-2, the victim and waiting for customers and allegedly he was caught hold of from the entry of LW.1, the police official. The other contention is Section 370-A(2) has no application for LW-2, because she is not a minor.
4. A perusal of the case dairy shows the prima facie accusation under Sections 3 to 6 of PIT Act, leave about application of Section 370-A or 370 or 371 which can not be taken advantage even the victim is not a minor for wrong mentioning of the provision. It appears charge sheet is filed having completed the investigation and, but for securing for trial and non- interference with witnesses, there is no practical need of detention curtailing the personal liberty further.
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5. Taking into consideration of the above and the maximum punishment provided even in this offence under Section 370-A is below 7 years and the petitioner is in judicial custody since 03.05.2014, this petition is allowed granting bail subject to the following conditions-
[1] Petitioners shall execute a self-bond for Rs.25,000/- [Rupees twenty five thousand only] with two sureties each for the like sum each to the satisfaction of the arresting authority, otherwise giving liberty to the petitioners to submit before the Judicial Magistrate of First Class having the jurisdiction for taking to custody and enlarge. The bond to be obtained is not only to appear before the court pending investigation and after filing of final report in the form of charge sheet or the like for enquiry or pre committal enquiry before said Court, but also thereafter on committal before the Court of Sessions or by virtue of any transfer of proceedings for want of jurisdiction or otherwise before any other Court and even after trial before such Court to appear before revisional or appellate Court or other superior Court - vide decision-Pre-Legal Aid Committee, Jamshedpur vs State of Delhi 1982 [2] APLJ 43 (SC); so that at stage of committal or other proceedings obtaining of fresh bond from accused and even affidavits of sureties of bonds and solvency earlier produced are ratifying and in existence and enforceable, without even insisting their further presence, serves the purpose. Such recourse quickens the proceedings at such committal or other stages without loss of time and it also to some extent complies with the requirement of Section 437A CrPC.
[2] Petitioners shall report before the Station House Officer concerned on everyday till filing of the charge sheet and thereafter once in a month on 1st Sunday till completion of trial/enquiry between 4.00 to 6.00 PM for assurance of their availability and non-interference in any manner with the witnesses.
[3] Petitioners shall not enter the area where the victim and witnesses reside, until further orders being passed by the learned Magistrate relaxing the same empowering him by virtue of this order.
[4] Petitioners shall attend before the Court of law regularly in enquiry and trial without fail, if not their bail shall be cancelled forthwith, without any further order so that, the Magistrate can also issue NBW by canceling the bail from the power under section 439 [2] Cr.PC. delegated to the learned Magistrate by this order during pendency of proceedings before the Magistrate.
[5] Petitioners shall not leave the State pending enquiry/trial without prior permission of the Court of concerned Magistrate/trial Judge.
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[6] Petitioners shall furnish their full address with property and Bank Account particulars and submit their passport/s if any, after enlargement of bail on the next hearing date before the Magistrate Court concerned (for collecting by police as part of their duty to investigate-also the means of accused and to furnish the same in the final report of investigation to enable the trial court in the event of considering the need of awarding compensation under section 357 CrPC. So to award from such material and evidence, apart from securing presence and obtaining of bond with sureties under section 437A CrPC. etc.), failing which it is open to the learned Magistrate concerned by virtue of the power conferred by this order to cancel the bail.
[7] The bail now granted is since a regular one till end of trial (without prejudice to the right to cancel meanwhile in case of need and/or for non- compliance of conditions supra) any absence of petitioner/s as accused for hearing/enquiry or trial, issuance of non bailable warrant-NBW (unless cancelled before execution) and even its execution and production of accused as per the NBW; that does not tantamount to cancellation of bail including from the wording of Sec.439(2) CrPC. and as such in such event no fresh bail application can be entertained. As it tantamounts to only cancellation of bail bonds earlier executed, (leave about the power of the court to issue surety notices by forfeiting bonds and for imposing penalty on the bonds forfeited); the proper course is to direct the accused to work out the remedy to pay penalty on the previous forfeited bonds as per Section 441 to 446 CrPC. and to submit fresh solvency with self bond for enlarging him by release from custody on payment of penalty of the earlier bonds forfeited without need of enforcing against earlier sureties again.
[8] If there is any crime pending or if at all committed in future the police are at liberty for cancellation of bail by virtue of this order as part of this bail conditions granted.”
Sd/-R. VENKATA LAKSHMI ASSISTANT REGISTRAR //TRUE COPY// for ASSISTANT REGISTRAR To
1. The Additional Metropolitan Sessions Judge, Cyberabad at L.B. Nagar, Hyderabad
2. The II AJCJ-cum-XIX Metropolitan Magistrate, Kukatpally, at Miyapur, Cyberabad
3. The Station House Officer, KPHB Police Station, Cyberabad. (Cr.No.424/2014)
4. The Superintendent, Cherlapally Central Jail, Ranga Reddy District
5. Two CCs to Public Prosecutor, High Court, Hyderabad (OUT)
6. One CC to Smt. J. Sumathi, Advocate (OPUC)
7. One Spare copy KK HIGH COURT DR.SSRBJ DT. 13-6-2014 BAIL ORDER CRL.P.NO.5813 OF 2014 DIRECTION Drafted by: KK Drafted on: 16-6-2014 HIGH COURT DR.SSRBJ DT. 11-6-2014 BAIL ORDER CRL.P.NO.5813 OF 2014 DIRECTION