IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND FOURTEEN :PRESENT:
THE HON'BLE DR JUSTICE B.SIVA SANKARA RAO CRL.P.NO:4744 of 2014 Between:
Thammina Shiva Kumari W/o Late Nata Raja Rao, . Petitioner/Accused No.2 AND State, rep. by II Town PS, Vijayawada P.S. through its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad . Respondent 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 enlarge the petitioner on bail in the event of her arrest in Crime No.93 of 2014 on the file of the II Town PS, Vijayawada City, Krishna District.
The petition coming on for hearing, upon perusing the petition and the grounds filed herein and upon hearing the arguments of Sri Sreenivasa Rao Velivela, Advocate for the Petitioner and of the Addl. Public Prosecutor for the Respondent, the Court made the following.
ORDER:
“The Criminal Petition, under Section 438 of the Code of Criminal Procedure, is filed by the petitioner –accused No.2 in Crime No.93 of 2014 on the file of S.H.O., II Town P.S., Vijayawada, Krishna District, registered against her for the offence punishable under Section 498-A read with 34 IPC.
Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondent-State and perused the material placed on record.
Taking into consideration of the propensity of the crime and the role of the accused and balancing the personal liberty of the accused vis-à-vis the larger interest of the Society without going into the truth of the averments, though it is the contention that the accused demanded additional dowry from the defacto- complainant, to attract Section 498-A IPC, from the apprehension that in view of the crime registered by the police, there is every likelihood of custodial harassment, anticipatory bail is granted, subject to the following conditions:
[1] Petitioner shall execute a self-bond for Rs.25,000/- [Rupees twenty five thousand only] with two sureties for the like sum each to the satisfaction of the Station House Officer, II Town Police Station, Vijayawada, Krishna District, in the event of arrest for her release. The petitioner is given liberty to submit to the custody of the Magistrate Court concerned and furnish solvency supra for release by 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] Petitioner 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 her availability and non-interference in any manner with the witnesses.
[3] Petitioner 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 ther order to modify the above condition.
[4] Petitioner shall attend before the Court of law regularly in enquiry and trial without fail, if not her 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 ther order during pendency of proceedings before the Magistrate/trial Judge.
[5] Petitioner shall not leave the State of AP pending enquiry/trial without prior permission of the Court of concerned Magistrate/trial Judge.
[6] Petitioner shall furnish her full address with property and Bank Account particulars and submit her 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 ther 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 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.”
//TRUE COPY// To Sd/- R.VENKATA LAKSHMI ASSISTANT REGISTRAR For ASSISTANT REGISTRAR
1. The II Additional Chief Metropolitan Magistrate, Vijayawada
2. The Station House Officer, II Town Police Station, Vijayawada City, Krishna District
3. Two Ccs to Public Prosecutor, High Court of A.P., Hyderabad (OUT)
4. one CC to Sri Sreenivasa Rao Velivela, Advocate (OPUC)
5. One Spare Copy HIGH COURT AB DRAFTED ON 29-4-2014 DR.SSRBJ DATE: 28-4-2014 ORDER CRL.P. NO. 4744 OF 2014 BAIL