Research › Search › Judgment

Andhra High Court · body

2018 DIGILAW 516 (AP)

Prakash Gentala v. State of Andhra Pradesh

2018-07-20

B.SIVA SANKARA RAO

body2018
ORDER : B. SIVA SANKARA RAO, J. 1. The petitioner is the sole accused of Crime No. 174 of 2018, dated 27.5.2018, of Pattaphipuram Police Station, Guntur Urban, registered for the offence punishable under Section 493 of I.P.C. 2. Heard, the learned Counsel for the petitioner and the learned Public Prosecutor, in the anticipatory bail application, opposing the bail. 3. From the report of the de facto complainant viz., Vijay Kumari Gali that her husband a Pastor, divorced her in the year 1999; later, she was getting on by taking care of the two children by doing some hard and sundry private jobs and, ultimately, in Bhashyam Publishers attending the accounts works and it was so in 2005 the accused of Nagaram Palem area acquainted to her; he was running a Christian magazine 'Vidharthi Jwala' as it's Editor and from their acquaintance from his say that she was feeling difficulty to take care of the children out of little earnings, she can be under his folds by saying as if wife and husband by giving a ring and they were living together, leading conjugal life, and he is taking care of the household needs and the education of her children, through her divorced husband, as a guardian and while so all of a sudden, he asked his cell phone audio to be heard by her, which contains vulgar and indecent songs and when she questioned he stated he was going to marry another woman and therefrom failed to attend the home and not taking care of, hence, to take action. 4. Undisputedly, she is a divorced woman and not an illiterate and knows consequences of divorce and giving a ring itself will not give the marital tie and if at all she was willing and living with him, being two male and female majors, having a sexual life voluntary, it will not ripe into marital tie. Once such is the case, the very application of Section 493 I.P.C. is bleak. 5. Having regard to the above, anticipatory bail is granted subject to the following conditions: (i) Petitioner-accused shall within fifteen (15) days from today submit before the S.H.O. concerned and execute a self-bond for Rs. Once such is the case, the very application of Section 493 I.P.C. is bleak. 5. Having regard to the above, anticipatory bail is granted subject to the following conditions: (i) Petitioner-accused shall within fifteen (15) days from today submit before the S.H.O. concerned and execute a self-bond for Rs. 50,000/- [Rupees fifty thousand only] with two sureties for a like sum each to the satisfaction of the arresting authority, otherwise giving liberty to the petitioner-accused to submit within said 15 days from now before the Judicial Magistrate of First Class having the jurisdiction, for taking to custody and to enlarge as above. 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 v. 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 solvencies earlier produced are ratifying and in existence and enforceable, without even insisting his 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 437-A Cr.P.C. (ii) Petitioner-accused shall report before the Station House Officer, 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 a.m., for assurance of their availability and non-interference in any manner with the witnesses. (iii) Petitioner-accused shall not enter the area where the complainant and witnesses reside, until further orders being passed by the learned Magistrate relaxing the same empowering him by virtue of this order. (iii) Petitioner-accused shall not enter the area where the complainant and witnesses reside, until further orders being passed by the learned Magistrate relaxing the same empowering him by virtue of this order. (iv) Petitioner-accused 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 cancelling the bail from the power under Section 439(2) Cr.P.C. delegated to the learned Magistrate by this order during pendency of proceedings before the Magistrate. (v) Petitioner-accused shall not leave the State pending enquiry/trial without prior permission of the Court of concerned Magistrate/trial Judge. (vi) Petitioner-accused shall furnish his full address with property and Bank Account particulars and submit his 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 Cr.P.C. So to award from such material and evidence, apart from securing presence and obtaining of bond with sureties under Section 437-A Cr.P.C. etc.), failing which it is open to the learned Magistrate concerned by virtue of the power conferred by this order to cancel the bail. (vii) In the event of the police making out a case for police custody for the purpose of interrogation, the petitioner shall be liable to be taken in police custody for facilitating the further investigation remained, if any, with the permission of the Magistrate concerned who can grant such police custody within 15 days from today, not exceeding 12 hours in the presence of a male member, subject to necessary precautions and instructions as per the Constitutional Bench expression of the apex Court in Guideline No. iv in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 . (viii) The bail now granted is since an anticipatory bail 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 Section 439(2) Cr.P.C. and as such in such event no fresh bail application can be entertained. As it tantamount 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 Sections 441 to 446 Cr.P.C. and to submit fresh solvencies with self bonds for enlarging him by release from custody on payment of penalty of the earlier bonds forfeited without need of enforcing against earlier sureties again. 6. Accordingly, with the above directions, the criminal petition is allowed. 7. In consequence, miscellaneous petitions, if any, pending in this petition shall stand closed.