HON’BLE SRI JUSTICE R. KANTHA RAO
CRIMINAL PETITON NO.8342 of 2013 AND
CRIMINAL PETITON NO.8649 of 2013
Date:22-01-2014
CRIMINAL PETITON NO.8342 of 2013
Between:
The State, rep. by Public Prosecutor, High Court of A.P., Hyderabad and another ….Petitioners And K.V.Subba Rao and another … Respondents/Accused
CRIMINAL PETITON NO.8649 of 2013
Between:
Jambavat Venugopal ….Petitioner/Third party And K.S.Subba Rao and two others …Respondents HON’BLE JUSTICE R.KANTHA RAO
CRIMINAL PETITON NO.8342 of 2013 AND
CRIMINAL PETITON NO.8649 of 2013
COMMON ORDER:
Crl.P.No.8342 of 2013 is filed by the State and Crl.P.No.8649 of 20134 is filed by the de facto complainant under Section 439(2) of Cr.P.C. seeking cancellation of bail of the respondents/Accused Nos.2 and 3.
Heard the learned counsel appearing for the de facto complainant, the learned counsel appearing for the respondents- Accused and the learned Additional Public Prosecutor representing the State.
Accused Nos.2 and 3 filed Crl.P.No.7380 of 2013 before this Court seeking anticipatory bail in Crime No.12 of 2009 of CCS, Hyderabad. The learned single Judge after thoroughly considering the facts and circumstances of the case, granted anticipatory bail to the accused Nos.2 and 3 with a condition to deposit their passports with the investigating officer pending further orders.
The brief facts which fell for consideration for granting anticipatory bail by the learned single Judge of this Court and also require consideration in the present petitions filed seeking cancellation of anticipatory bail granted by the learned single Judge may be stated as follows:
Mr.J.Venugopal, the de facto complainant is the brother of the first accused. He filed a private complaint in the court of the XII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad against the accused 1 to 3 alleging commission of offences punishable under Sections 120-B, 166, 218, 220, 468, 469, and 471 of IPC. It is mentioned in the complaint petition that at the behest of the first accused Mr.J.V. Mohan, Ex-Director of Flytech Aviation Ltd., A-2 Mr.K.S.Subba Rao and A-3 Mr.M.V.Sreeram who are the officials of the Directorate of Revenue Intelligence conspired together and hatched a plan to falsely implicate the complainant by planting forged and fabricated two invoices purported to have been issued by Benson International (HK) Ltd. and Strong Base Investment Limited with inflated value. In the course of searches conducted by the officials of DRI based on the invoices, the de facto complainant was arrested and remanded to judicial custody. The version of the de facto complainant was that A-2 and A-3 by misusing their official position conspired with A-1, got the de facto complainant involved in the case by planting forged and fabricated invoices.
It was argued before the learned single Judge in the application filed by the accused Nos.2 and 3 for anticipatory bail that A-2 and A-3 were the members of the party investigating team who seized the documents from the de facto complainant and a panchanama was prepared showing the seizure of documents and the invoice and it has been mentioned in one of the documents in the panchanama conducted on 20.12.2007. It was also submitted by A-2 and A-3 before the learned single Judge that they were working as officers in customs, excise and service tax departments of Government of India and they were on deputation to Directorate of Intelligence, Hyderabad and that as part of their official duty, they participated in the search proceedings, they would co-operate with the investigating officers and the question of absconding would not arise.
The learned single Judge acceded to the submission made by A-
2 and A-3 that they were the members of search party which conducted search in the premises of de facto complainant and in the course of which certain documents were seized under a cover of panchanma and also there was delay of about one year in lodging the complaint and further considering the fact that the acts allegedly done by the petitioners were while they were discharging their official duties, the learned single Judge granted anticipatory bail to A-2 and A-3 by imposing a condition to deposit their passports with the investigating officer pending further orders.
The said order is sought to be cancelled in these two criminal petitions.
Learned counsel appearing for the de facto complainant as well as the Additional Public Prosecutor representing the State would submit that searches were conducted at two independent places simultaneously by the officials of DRI on 20.12.2007 and the panchanamas do not have any reference to the impugned two invoices. As per the panchanama, A-2 was present at the office premises and A-3 was present at residence of Smt.S.Sunitha, estranged wife of A-1 and no searches were conducted at the premises of A-1 who was the active director at the time of imports and who cleared all the imports. It is further argued that in the course of investigation, the Benson International (HK) Ltd., Strongbase Investment Ltd., Hong Kong confirmed that the alleged invoices were not issued by them and A-2 and A-3 moved anticipatory bail only on coming to know about the replies sent by the aforesaid company in Hong Kong.
It is mainly contended that the learned single Judge in his order granting anticipatory bail dated 24.07.2013 observed that panchanama was prepared, the invoices were also referred in the panchanama and the said observation is factually incorrect. Initially it is submitted that since the accused persons are highly influential and in view of their official position, there is every likelihood of their tampering with the investigation and also influencing the investigating officer and therefore, their custodial interrogation is required.
On the aforesaid grounds, the bail is sought to be cancelled.
On the other hand, the learned counsel appearing for the accused Nos.2 and 3 (the respondents) argued that the learned single Judge mainly considering that there is inordinate delay in lodging the complaint and also the fact that the petitioners were members of the search party granted anticipatory bail and there are valid grounds to cancel the same as urged by the de facto complainant and the State and therefore, the petitions are liable to be dismissed.
In KANWAR SINGH MEENA v. STATE OF RAJASTHAN AND
[1]
ANOTHER relied on by the learned counsel appearing for A-2 and A-3 (the respondents), the Supreme Court laid down the following principles applicable for cancellation of bail.
“While cancelling bail under Section 439(2) Cr.P.C., the primary considerations which weigh with the court are whether the accused is likely to taper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevant to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society.”
On the other hand, the learned counsel appearing for the petitioner-de facto complainant relied on DR. NARENDRA K. AMIN v.
[2]
STATE OF GUJARAT AND ANOTHER wherein the Supreme Court held following the ratio in PURAN v. RAMBILAS AND ANOTHER reported in 2001 CrlLJ-2566 as follows:
“The concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation.
If irrelevant materials have been taken into consideration for granting bail, it furnishes a ground for cancellation of bail. If the irrelevant materials should be of a substantial nature and not of a trivial nature and it is found that the bail was granted on untenable grounds, the same can be cancelled.”
The learned single Judge while granting anticipatory bail thoroughly examined the facts of the case and gave adequate reasons for granting anticipatory bail. The main grounds on which the anticipatory bail was granted were that there is inordinate delay of one year in filing the private complaint by the de facto complainant and the petitioners being the members of the search party, the alleged act was committed by them while discharging their official duties and there is no possibility for them to abscond or interfere with the process of investigation. Merely an observation was made that the invoices were referred in the panchanama, it cannot be said that was the main ground basing on which the learned single judge made up his mind to grant anticipatory bail. It cannot therefore be said that irrelevant material of substantial nature has been considered by the learned single Judge in granting anticipatory bail.
In the instant case, A-1and the de facto complainant are no other than the brothers. There was long standing enmity between them. Several disputes and cases were pending between them on account of the said disputes. Either the learned Public Prosecutor or the learned counsel appearing for the de facto complainant placed any convincing material indicating the possibility of the petitioners tampering with the evidence or interfering with the due course of investigation. The subsequent conduct of A-2 and A-3 after granting of anticipatory bail also does not reveal that they interfered with the process of investigation in any manner. The de facto complainant and the State only expressed their apprehension that they would interfere with the fair investigation and this Court is not supposed to cancel the bail basing on the mere apprehension. No convincing reasons were also made out showing that custodial interrogation is required in this case.
For the foregoing reasons, I see no valid grounds to cancel the anticipatory bail granted by the learned single Judge. Both the criminal petitions are dismissed.
R.KANTHA RAO,J Date:22.01.2014 ccm HON’BLE SRI JUSTICE R. KANTHA RAO
CRIMINAL PETITON NO.8342 of 2013 AND
CRIMINAL PETITON NO.8649 of 2013
Date:22-01-2014
[1] (2012) 12 SCC 180
[2] (2008) 13 SCC 584