IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADE WEDNESDAY, THE ELEVENTH DAY OF JUNE, TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE DR. JUSTICE B. SIVA SANKARA RAO CRL.P.No. 5912 of 2014 Between:
1 P. Rajeshwar S/o. P. Sharanappa,
2 P. Shiva Jyothi, W/o. P. Rajeshwar Petitioners/Accused AND
1. The Station House Officer, Musheerabad P.S., Hyderabad rep. by its Public Prosecutor, Andhra Pradesh, Hyderabad,
2. K. Samrat A.S.K. Narender, S/o. K. Narasaiah, Occ: LIC Agent, R/o. H.No.1- 9-92/B, Street No.18, Ramnagar, Hyderabad.
Respondents/Defacto Complainant COUNSEL FOR THE PETITIONERS: SRI. P. LAKSHMANA RAO COUNSEL FOR THE RESPONDENT: THE PUBLIC PROSECUTOR Petition under Section 438 of Cr.P.C., praying that in the circumstances stated in the memorandum of grounds filed herein, the High Court may be pleased to direct the Station House Officer, P.S, Musheerabad, Hyderabad to enlarge the petitioners on the bail in the event of their arrest in connection with the FIR No. 165/2014 dated 18-4-2014 on the file of Station House Officer, P.S. Musheerabad, Hyderabad.
The Court made the following Order:
“This Criminal Petition is filed under Section 438 Cr.P.C by the petitioners/A.1 and A.2 in Crime No.165 of 2014, on the file of the Station House Officer, Musheerabad Police Station, Hyderabad, registered against them for offences punishable under Sections 406,418,420, and 120(B) I.P.C.
2. Heard the Learned Counsel for the Petitioners, the Learned Public Prosecutor for the Respondent-State and perused the material placed on record.
3. These petitioners are wife and husband and the private complaint against the petitioners filed by the defacto-complainant was referred under Section 156(3) of Cr.P.C. by the learned Magistrate to the police and the same is under investigator. It is the averment that having availed the loan by the accused persons of Rs.12,00,000/- issued a cheque and also title deed relating to their property they cheated by use of the documents not genuine and misled. The averments in the bail application para-3 as if the accused discharged the loan, no doubt with no basis. The application for anticipatory bail moved by them was ended in dismissal dated 29.05.2014 by the learned III Additional Metropolitan Sessions Judge in Crl.M.P.No.1952 of 2014. The main averment is the petitioners gave colour Xerox copies to make believe as if original title deed of A.2 was given. From the private complaint at para- 5 of its reading in this regard supra there is nothing to say it is equitable mortgage created by depositing of title deed. Needless to say even the same got enforced as equitable mortgage if at all for civil remedy for nothing to show it is not the property existing. Hence, this Court feels instead of dismissing the bail application of A.1, it is just to dispose of the same but by considering for A.2 being a lady.
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4. In the result, the Criminal Petition is disposed of by giving liberty to the petitioner/A.1 to surrender before the learned Magistrate and move for regular bail with a notice to Assistant Public Prosecutor and in such an event, the learned Magistrate shall dispose of the bail application at least by next day with necessary conditions in granting bail. The application with regard to A.2 is allowed by granting anticipatory bail, subject to the following conditions:
[1] Petitioner/A2 shall execute a self-bond for Rs.25,000/-each [Rupees twenty five thousand only] with two sureties 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 provisional 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] Petitioner/A2 shall report before the Station House Officer, concerned on every Sunday till filing of the charge sheet and thereafter once in a month on 1st Sunday till completion of trial/enquiry between 10.00 and 11.00 AM for assurance of his availability and non-interference in any manner with the witnesses.
[3] Petitioner 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] Petitioner 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 cancelling the bail from the power under section 439 [2] CrPC. delegated to the learned Magistrate by this order during pendency of proceedings before the Magistrate.
[5] Petitioner shall not leave the State pending enquiry/trial without prior permission of the Court of concerned Magistrate/trial Judge.
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[6] Petitioner shall furnish their full address with property and Bank Account particulars and submit their passport 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 petitioners 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.”
ASSISTANT REGISTRAR //TRUE COPY// for ASSISTANT REGISTRAR To
1. The III Additional Metropolitan Sessions Judge at Hyderabad
2. The XVII Additional Chief Metropolitan Magistrate, Hyderabad
3. The Station House Officer, Mushseerabad Police Station, Hyderabad.
4. Two CCs to Public Prosecutor, High Court, Hyderabad (OUT)
5. One CC to Sri. P. Lakshmana Rao, Advocate (OPUC)
6. One Spare copy KK HIGH COURT DR.SSRBJ DT. 21-6-2014 BAIL ORDER CRL.P.NO.5912 OF 2014 DIRECTION Drafted by: KK Drafted on: 16-6-2014 HIGH COURT DR.SSRBJ DT. 11-6-2014 BAIL ORDER CRL.P.NO.5912 OF 2014 DIRECTION