IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH WEDNESDAY, THE NINTH DAY OF JULY, TWO THOUSAND AND FOURTEEN :PRESENT:
THE HONOURABLE DR JUSTICE B. SIVA SANKARA RAO CRL.P. No. 7210 of 2014 Between:-
1. Shaik Mahaboob Ali S/o. Shaik Baji Saheb
2. Shaik Silar Bee W/o. Darla Hussain.
..... Petitioners/Accused Nos.3 & 5 in Crime No. 138 of 2014 of Pedakakani Police Station, Guntur District.
AND State of A.P., rep. by the Station House Officer, Peddakakani P.S., Guntur District, through the Public Prosecutor, High Court of Judicature, Hyderabad for the State of Telangana And for the State of Andhra Pradesh.
. 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 pass orders directing that in the event of the petitioners being arrested in connection with Crime No. 138 of 2014 of Peddakakani Police Station, they be released on bail by the Investigating Officer, according to such terms and conditions.
The petition coming on for hearing, upon perusing the petition and the grounds filed herein, and upon hearing the arguments of Sri P.V. Vidyasagar, Advocate for the Petitioners and of the Public Prosecutor on behalf of respondent- State, the Court made the following ORDER:-
“This Criminal Petition filed under Section 438 Cr.P.C by the petitioners/A.3 and A.5 in Crime No.138 of 2014, on the file of the Station House Officer, Peddakakani Police Station, Guntur urban registered against them for the offences punishable under Sections 427,420 and 409 read with 34 of 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 the A.3 and A.5 in the above crime. The allegation against them in the report given by Wakf Inspector is that the petitioners herein along with other accused committed embezzlement of funds of the Wakf by name Dargah Hazarath Syed Baji Shareef of Peddakakani. In this case, by order of this Court, dated 16.06.2014 in Crl.P.No.6005 of 2014 for anticipatory bail of A.1 and A.2 is disposed of and as per order dated 19.06.2014 of another bench of this Court in Crl.P.No.6590 of 2014 disposed of granting liberty to the police to go on with investigation in the crime however not to arrest the petitioners herein-A.3 and A.5 during pendency of investigation. Needless to say A.2 obtained anticipatory bail by order of another bench of this Court in Crl.P.No.5569 of 2014 dated 29.05.2014.
Contd…2… - 2 -
4. Taking into consideration of these facts, anticipatory bail is granted, subject to the following conditions:
[1] Petitioners/A.3 and A.5 shall execute a self-bond for Rs.25,000/-each [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 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] Petitioners/A.3 and A.5 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] Petitioners/A.3 and A.5 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/A.3 and A.5 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] Petitioners/A.3 and A.5 shall not leave the State pending enquiry/trial without prior permission of the Court of concerned Magistrate/trial Judge.
Contd….3….
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[6] Petitioners/A.3 and A.5 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 Sessions Judge, Guntur.
2. The Station House Officer, Peddakakani Police Station, Guntur District.(Cr.No. 138 of 2014)
3. Two CCs to the Public Prosecutor, High Court at Hyd(OUT)
4. One CC to Sri P.V. Vidyasagar, Advocates (OPUC)
5. One Spare Copy. TKK HIGH COURT SSRB.J DATE: 09-07-2014 ANTICIPATORY BAIL ORDER CRL.P. No. 7210 OF 2014 RELEASE THE PETITONERS ON BAIL IN THE EVENT OF THEIR ARREST.
DRAFTED BY TKK DT.10-07-2014.
HIGH COURT SSRB.J DATE: 09-07-2014 BAIL ORDER CRL.P. No. 7210 OF 2014 RELEASE THE PETITONERS ON BAIL IN THE EVENT OF THEIR ARREST.