HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH FRIDAY, THE THIRTEENTH DAY OF JUNE TWO THOUSAND AND FOURTEEN Between:
:PRESENT:
THE HON'BLE DR. JUSTICE B.SIVA SANKARA RAO CRL.P. NO:5962 of 2014 Ved Prakash Kotari @ Ajay Sharma @ Ratan @ Ali, S/o. Harish Chand, . Petitioner/Accused No.3 AND State, Inspector of Police, KPHB., Police Station, Hyderabad, Rep., by Public Prosecutor, High Court of A.P., Hyderabad . Respondent/Respondent Petition under Sections 437 & 439 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 / Accused No. 3 on bail, arrested in FIR. No. 55/2014 of KPHB Police Station, Cyberabad on such terms and conditions as this Hon'ble Court may deem fit and proper in the interest of justice.
The petition coming on for hearing, upon perusing the petition and the grounds filed herein and upon hearing the arguments of Sri K. Venumadhav, Advocate for the Petitioner and of the Addl. Public Prosecutor for the Respondent, the Court made the following.
ORDER:
“The Criminal Petition is filed under Sections 437 and 439 Cr.P.C by the petitioner/ A-3 in Crime No.55/2014 of KPHB Police Station, Cyberabad, registered for the offences punishable U/Sections 376-D, 379, 420, 328 and 120-B of IPC.
2. Heard the Learned Counsel for the Petitioner, the Learned Additional Public Prosecutor for the Respondent-State and perused the material placed on record.
3. From the factual matrix that this petitioner along with other accused allegedly gang raped the victim, who is small time actress at Mumbai in the pretence of securing her to Hyderabad for performing some show.
4. A perusal of the case diary shows that the petitioner is also one of the main perpetrators involved in the criminal activity with this victim and also appears to have robbed valuables from her and also withdrawn an amount of Rs.57,000/- from her ICICI bank account to say the crime is so heinous. However, the fact remains she did not choose to report the occurrence immediately to the police at Hyderabad but for later after her reaching Mumbai with this version. Though it is one of the contentions in saying as false accusation that he raped the victim; the fact remains that in Crl.P.No.3361 of 2014 the other bench of this Court, granted bail to A1, by order dated 01.04.2014, similarly in Crl.P.No.4108 of 2014 the same bench of this Court granted bail to A-4. On an observation therein goes to show the same Court granted bail to A1 and the allegations against A1 and A4 supra are at par.
5. It is needful to say further factual matrix of the case that this petitioner is A-3 of the crime, that name mentioned in bail petition as Rohit Prakash Kotari @ Ajay Sharma @ Ratna @ Ali @ Ahmed, S/o.Harish Chand (as per the case record it also shows Ved Prakash Kotari) with supporting name of Ved Prakash Kotari and not Rohit Prakash Kotari. It is needless to say recording his name description, further from the above that A-3 was enlarged by same bench by order dated 07.04.2014 in Crl.P. No. 4230 of 2014 and later, this petitioner moved an application for correction of his name, due to clerical mistake showing the name of the petitioner as Rohit Prakash Kotari instead of Ved Prakash Kotari, and the same was dismissed with a short order, by the same bench on 28.04.2014 in Crl.P. No.4814 of 2014. Subsequently, he moved another application in the regular bail with correct name in Crl.P.No.5432 of 2014, but that was withdrawn on 22.05.2014. It appears that there is nothing to be noted in this bail application as to what made him to withdraw and as to what made him to file this application but for the oral say and it was bereft of required particulars.
6. Taking into consideration of these facts and he is in judicial custody since 12.01.2014 and record shows investigation is completed and charge sheet filed on 09.04.2014 by citing as many as 49 witnesses, by also considering the fact that he was already granted otherwise not entitled of heinous nature, the 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 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 revisional or appellate Court or other superior Court - vide decision-Pre-Legal Aid
[1]
Committee, Jamshedpur vs State of Delhi ; 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 shall report before the Station House Officer concerned on everyday till filing of the charge sheet and thereafter once in a month on 1st Sunday till completion of trial/enquiry between 4.00 to 6.00 PM for assurance of their 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 his bail shall be cancelled forthwith, without any further order so that, the Magistrate can also issue NBW by canceling the bail from the power under section 439 [2] Cr.PC. 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.
[6] Petitioner shall furnish his full address with property and Bank Account particulars and submit his 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// To For ASSISTANT REGISTRAR
1. The II Additional Junior Civil Judge, cum XIX Metropolitan Magistrate, Kukatpally, Miyapur, Cyberabad.
2. The XIX Metropolitan Magistrate, Cyberabad, Miyapur
3. The Station House Officer, KPHB Colony Police Station, Cyberabad.
4. The Superintendent, Cherlapally Central Jail, RR District
5. Two CCs to Public Prosecutor, High Court Buildings, Hyderabad (OUT)
6. One CC to Sri K.Venumadhav, Advocate (OPUC)
7. One Spare Copy HIGH COURT AB DRAFTED ON 16-6-2014 DR.SSRBJ DATE: 13-6-2014 ORDER CRL.P. NO. 5962 OF 2014 BAIL
[1] 1982 [2] APLJ 43 (SC)