IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY EIGHTH DAY OF APRIL, TWO THOUSAND AND FOURTEEN :PRESENT:
THE HONOURABLE DR JUSTICE B. SIVA SANKARA RAO CRL.P. No. 4738 of 2014 Between:-
1. Saleema Begum W/o. Suleman Bin Yousuf(A2)
2. Zarina Begum W/o. Md. Iqbal
3. Raheema Begum W/o. Sharif Khan
4. Haleema Begum W/o. Md. Tanveeruddin
5. Tayyaba Begum W/o .Md. Farooq
6. Sayeeda Begum W/o. Md. Shakeel.
..... Petitioners/Accused Nos.2 to 7 in Crime No. 93 of 2014 On the file of Falaknuma Police Station, Hyderabad.
AND The State of A.P., Rep. by its Public Prosecutor, High Court of A.P., Hyderabad.
....Respondent/Complainant.
Petition under Section 438 of CR.P.C., praying that in the circumstances stated in the petition and the grounds filed herein, the High Court may be pleased to grant anticipatory bail in Crime No.
93 of 2014 pending on the file of S.H.O. Falaknuma Police, on furnishing the solvent sureties to the satisfaction of XIII A.C.M.M., Nampally, Hyderabad, directing the police Falaknuma to release the Petitioners with immediate effect on in the event of their arrests.
The petition coming on for hearing, upon perusing the petition and the grounds filed herein, and upon hearing the arguments of Sri Qaz Syed Mazheruddin, Advocate for the Petitioner and of the Public Prosecutor on behalf of Respondent-State, the Court made the following.
ORDER:-
“This Criminal Petition, under Section 438 of the Code of Criminal Procedure, is filed by the petitioners –accused Nos.2 to 7 in Crime No.93 of 2014, on the file of Station House Officer, Falaknuma, Hyderabad, registered against them for the offences punishable under Sections 498(A) and 506 of the Indian Penal Code and Sections 3 and 4 of the D.P. Act.
2. Heard the Learned Counsel for the Petitioners, the Learned Additional Public Prosecutor for the Respondent-State and perused the material placed on record.
3. The Apex Court in Siddharam Satlingappa Mhetre vs State of Maharashtra (AIR 2011 SC 312) in paras 3 and 92 and 122 held as follows:-
“3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or
refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.
92. Just as the Liberty is precious to an individual, so is the society's interest-in maintenance of peace, law and order. Both are equally important”.
122. The following factors and parameters can be taken into consideration while dealing with the (anticipatory) bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
The above expressions are required to be evaluated by considering the propensity of the crime and particularly the role of A2 and A7 also in this case, as can be seen from the case diary
submitted by the learned Public Prosecutor in opposing the bail by dismissing the anticipatory bail sought by A2 and A-7, who are petitioners 1 and 6 with liberty to approach by surrender before the concerned Magistrate court to consider after hearing objections of the Public Prosecutor with reference to the case diary on merits their entitlement by disposal earlier; anticipatory bail is granted to the other petitioners 2 to 5, who are accused persons 3 to 6 subject to the following conditions:-
[1] Petitioners 2 to 5 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 Station House Officer, Falaknuma, Hyderabad, in the event of arrest for their release. The petitioners 2 to 5 are given liberty to submit to the custody of the Magistrate Court concerned and furnish solvency supra for release by its acceptance. The bonds 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 trial before said Court, but also 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 enquiry/trial committal, if any, or other proceedings obtaining of fresh bond from accused and even affidavits of sureties of bonds and solvency earlier produced are ratifying as 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 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 their availability and non-interference in any manner with the witnesses.
[3] Petitioners shall not enter the village where the victim and witnesses reside, until further orders by the learned Magistrate concerned on whom power is conferred by virtue of this order to modify the above condition.
[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 cancelling the bail from the power under section 439 [2] CrPC. delegated to the learned Magistrate/trial Judge by this order during pendency of proceedings before the Magistrate/trial Judge.
[5] Petitioners shall not leave the State of AP pending enquiry/trial without prior permission of the Court of concerned Magistrate/trial Judge.
[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.”
ASSISTANT REGISTRAR //TRUE COPY// For ASSISTANT REGISTRAR To
1. The XIII Additional Chief Metropolitan Magistrate at Nampally, Hyderabad.
2. The Station House Officer, Sanathnagar Police Station, Cyberabad.(Cr.No. 157/14)
4. Two CCs to Public Prosecutor, High Court of A.P., Hyderabad (OUT)
5. One CC to Sri Qaz Syed Mazheruddin, Advocate (OPUC)
6. One Spare Copy.
TKK HIGH COURT SSRB.J DATE: 28-04-2014 ANTICIPATORY BAIL ORDER CRL.P. No. 4738 OF 2014 RELEASE THE PETITONER ON BAIL IN THE EVENT OF HER ARREST.
DRAFTED BY TKK DT.02-05-2014.
HIGH COURT SSRB.J DATE: 28-04-2014 ANTICIPATORY BAIL ORDER CRL.P. No. 4738 OF 2014 RELEASE THE PETITONER ON BAIL IN THE EVENT OF HER ARREST.