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Telangana High Court · body

2020 DIGILAW 752 (TS)

Fatima Nooraiyn Tuba v. State of Telangana

2020-11-09

KUNURU LAKSHMAN

body2020
ORDER : Kunuru Lakshman, J. 1. This Criminal Petition is filed under Section 439(2) of Cr.P.C. to cancel the anticipatory bail granted to the second respondent/A-1 vide order dated 05.12.2018 in Crl.M.P. No. 3626 of 2018 in Crime No. 330 of 2018 by the V Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad (for short, V AMSJ, Hyderabad). 2. The second respondent herein is A-1 in Crime No. 330 of 2018 on the file of WPS, CCS, DD, Hyderabad. The offences alleged against him are under Sections 498-A, 406, 420 and 313 of IPC and Sections 4 and 6 of the Dowry Prohibition Act, 1961. 3. Heard Sri S. Ashok Anand Kumar, learned counsel for the petitioner-de facto complainant, learned Public Prosecutor appearing on behalf of respondent No. 1 - State, and Sri Khaja Manzoor Ali, learned counsel for the respondent No. 2 - accused No. 1. Perused the material on record. 4. The following are the undisputed facts: (i) The marriage between the petitioner and the second respondent was performed on 21.07.2015. The petitioner herein has lodged a complaint dated 25.06.2018 with WPS, DD, Hyderabad, who in turn, registered a case in Crime No. 230 of 2018 for the offences under Sections 498-A, 406, 420 and 313 of IPC and Sections 4 and 6 of the Dowry Prohibition Act against respondent No. 2 - accused No. 1 and others. (ii) The second respondent/A-1 has filed an application vide Crl.M.P. No. 3626 of 2018 under Section 438 of Cr.P.C. before the V AMSJ, Hyderabad seeking anticipatory bail. (iii) The V AMSJ, Hyderabad vide order dated 05.12.2018 granted anticipatory bail to the second respondent/A-1 on the condition of executing a personal bond for Rs. 10,000/- with two sureties for the like sum each to the satisfaction of the concerned SHO (out of two sureties, one must be from his relative). (iv) Thereafter, the police have completed investigation and filed charge sheet in Crime No. 330 of 2018 and the same was taken on file by the II Additional Metropolitan Session Judge, Hyderabad vide S.C. No. 371 of 2019. The accused in the said case have filed a petition under Section 482 Cr.P.C. vide Crl.P. No. 1373 of 2020 to quash the proceedings in S.C. No. 371 of 2019. The accused in the said case have filed a petition under Section 482 Cr.P.C. vide Crl.P. No. 1373 of 2020 to quash the proceedings in S.C. No. 371 of 2019. (v) This Court vide order dated 26.02.2020 disposed of the said criminal petition, dispensing with the personal appearance of A-1 and A-3 while permitting them to mark their appearance through their counsel, except on the dates when their presence is specifically required by the trial Court. However, the dispensation of personal appearance of the A-2 before the trial Court is rejected. The said S.C. No. 371 of 2019 is pending and it is posted for trial. (vi) The Investigating Officer has filed an application under Section 439(2) Cr.P.C. vide Crl.M.P. No. 1944 of 2019 in Crime No. 330 of 2018 before the V AMSJ, Hyderabad seeking to cancel the anticipatory bail granted to A-1. However, the V AMSJ, Hyderabad, vide order dated 18.10.2019 has dismissed the said application. (vii) Feeling aggrieved by the said order, the petitioner/de facto complainant has filed the present criminal petition along with I.A. No. 1 of 2020 seeking leave to her to challenge the said order. 5. The petitioner herein is the de facto complainant in Crime No. 330 of 2018. She has filed I.A. No. 1 of 2020 seeking leave to file the present petition. On her complaint only, the police have registered the above said crime. The second respondent herein is her husband. According to the petitioner, the second respondent/A-1 has obtained anticipatory bail by playing fraud on the Court. Having satisfied with the reasons mentioned in the affidavit filed in support of I.A. No. 1 of 2020 and also considering the fact that on the complaint filed by the petitioner herein, the wife of the second respondent, the police have registered the above said case, I.A. No. 1 of 2020 is allowed granting leave to the petitioner to file Crl.P. No. 232 of 2020 questioning the order dated 18.10.2019 passed in Crl.M.P. No. 1944 of 2019. 6. 6. The Investigating Officer has filed Crl.M.P. No. 1944 of 2019 seeking to cancel the anticipatory bail granted in favour of the second respondent on the ground that the second respondent in his anticipatory bail application contended that he is working in Hyderabad though, in fact, he is working in abroad and thus, he has misrepresented the Court by giving false information regarding his address and place of employment, and obtained the bail. Taking advantage of the anticipatory bail, he flew away to Saudi Arabia after his release on anticipatory bail. It is also contended by the petitioner that a lookout notice was issued against the second respondent and he has filed W.P. No. 46284 of 2018 challenging the said lookout notice. The said Writ Petition was disposed of by this Court directing the second respondent to approach appropriate forum of law. But, he has left India and went to Saudi Arabia, though lookout notice is pending. With the said contentions, the petitioner herein sought to cancel the anticipatory bail granted in favour of the second respondent/A-1 vide order dated 05.12.2018 in Crl.M.P. No. 3626 of 2018. The petitioner herein has filed copy of the order in Crl.M.P. No. 3626 of 2018 and counter filed thereon. 7. In the order dated 05.12.2018, the V AMSJ, Hyderabad recorded the contentions of the second respondent herein and mentioned that the second respondent is a private employee and permanent resident of Hyderabad. Considering the said fact and also the fact that the entire investigation has been completed and charge sheet has been filed, V AMSJ, Hyderabad, has granted anticipatory bail to the second respondent vide order dated 05.12.2018 with a direction to him to surrender before the concerned Court within 15 days from the date of order, and on such surrender, he shall be released on bail on executing a personal bond for Rs. 10,000/- with two sureties for a like sum each to the satisfaction of the concerned SHO (out of two sureties, one must be from his relative). In the said order, it is also mentioned that as per the record, the second respondent/A-1 is working privately in Hyderabad and hence, the question of his fleeing away from justice and tampering with the prosecution evidence does not arise. 8. In the said order, it is also mentioned that as per the record, the second respondent/A-1 is working privately in Hyderabad and hence, the question of his fleeing away from justice and tampering with the prosecution evidence does not arise. 8. In the complaint dated 25.06.2018, the petitioner herein has mentioned that her husband is in Saudi Arabia and her husband may come back again with more gundas and attack her father and brother any time. Her husband is holding Indian Passport and also having valid visa for Saudi Arabia. There is every possibility of her husband escaping from legal consequences as he is trying to leave the country as early as possible and if he succeeds in his illegal attempts, there is every possibility of causing injustice to her and her family members. She has also stated that she does not want any counseling. With the said contentions, the first respondent has filed counter in Crl.M.P. No. 3626 of 2018. The V AMSJ, Hyderabad, after considering the entire contentions and on perusal of the record, granted anticipatory bail to the second respondent on the ground that the entire investigation is completed and charge sheet was also filed. Thus, the petitioner herein failed to establish that the second respondent has misrepresented the V AMSJ, Hyderabad by stating that he is in India and he is doing a private job. 9. As discussed above, it is recorded in the order 05.12.2018 by the V AMSJ, Hyderabad that the second respondent/A-1 is a private employee and permanent resident of Hyderabad. Considering the said aspects only, the V AMSJ, Hyderabad has granted anticipatory bail to the second respondent. Even now, in the present Criminal Petition, the petitioner failed to produce any record/document to show that the second respondent has claimed that he is in India and a private employee. At the cost of repetition, it is apt to note that the petitioner did not file copy of the anticipatory bail application filed by the second respondent in Crl.M.P. No. 3626 of 2018. Thus, the contention of the petitioner that the second respondent has obtained anticipatory bail by misrepresentation and by playing fraud on the Court cannot be appreciated. She has not filed any complaint against the second respondent for the said alleged misrepresentation and fraud including initiation of proceedings under Section 340 of Cr.P.C. 10. Thus, the contention of the petitioner that the second respondent has obtained anticipatory bail by misrepresentation and by playing fraud on the Court cannot be appreciated. She has not filed any complaint against the second respondent for the said alleged misrepresentation and fraud including initiation of proceedings under Section 340 of Cr.P.C. 10. The other contention of the petitioner is that basing on the anticipatory bail granted to the second respondent, he left India to Saudi Arabia during the pendency of lookout notice issued against him. As stated above, the second respondent has filed W.P. No. 46284 of 2018 to withdraw the lookout notice issued against him and this Court vide order dated 20.12.2018, disposed of the same directing the second respondent to approach appropriate forum. 11. The petitioner has filed letter dated 21.05.2019 issued by Foreigners Regional Registration Office, Hyderabad, which reveals the travel particulars of the second respondent. In the said letter, it is specifically mentioned that the details provided therein are for the purpose of official investigations and should not be shared with any individual/any private agency or complainant. Even then, the petitioner has filed the said letter dated 21.05.2019. The petitioner has also filed notice issued to the second respondent by the Police under Section 41-A of Cr.P.C. and would contend that since the second respondent has left the country, the Police are unable to serve the said notice on the second respondent. She has also filed notice dated 12.07.2018 issued by Bureau of Immigration (Ministry of Home Affairs), Government of India, wherein it is mentioned that all the LOCs, which have completed one year, would automatically lapse after a year of opening, unless reviewed and recommended for retention by the originator. She has also filed fax messages dated 14.12.2019 and 21.12.2019 issued by AFRRO, RGIA, Hyderabad, which show that LOC was issued against the second respondent and it is mentioned that on 21.1.2019, the second respondent has approached the Department of Immigration to depart to Dammam from RGIA, Hyderabad. During scrutiny of travel documents, his name is figured in the crime. Since he has involved in Crime No. 330 of 2018, the same was informed to the originator on phone. As per the instructions from the originator, the said passenger was cleared through departure. During scrutiny of travel documents, his name is figured in the crime. Since he has involved in Crime No. 330 of 2018, the same was informed to the originator on phone. As per the instructions from the originator, the said passenger was cleared through departure. Therefore, the authorities have cleared the departure of the second respondent basing on the information furnished by the Police concerned/Originator of LOC. If at all the petitioner is having any grievance with regard to any procedural irregularity committed either by the Originator or the custodian of LOC, she has to initiate appropriate legal proceedings against them, but she cannot file application under Section 439(2) of Cr.P.C., seeking to cancel the anticipatory bail granted to the second respondent. Perusal of the material would also show that there are other proceedings i.e., M.C. No. 313/2018 and FCOP No. 1135/2018 pending against the second respondent at the instance of the petitioner. 12. Learned counsel for the petitioner, by referring to the said proceedings and also to the proceedings in S.C. No. 371 of 2019, would submit that the second respondent is in Saudi Arabia and he is not cooperating with the Court below in concluding the trial. But, the said proceedings would reveal that the Court below did not issue any non-bailable warrant against the second respondent. It is also trite to note that the second respondent and others have filed Crl.P. No. 1373 of 2020 under Section 482 of Cr.P.C., to quash the proceedings in S.C. No. 371 of 2019 and this Court vide order dated 26.02.2020 disposed of the same dispensing with the personal appearance of A-1 and A-3 while permitting them to mark their appearance through their counsel, except on the dates when their presence is specifically required by the trial Court. However, the dispensation of personal appearance of the A-2 before the trial Court was rejected. Thus, the appearance of the second respondent was dispensed with and he was permitted to appear through his counsel. Learned counsel would further submit that there is no complaint by the Police that the second respondent is not cooperating with the trial or he has violated the conditions imposed by the V AMSJ, Hyderabad, while granting anticipatory bail. There is no complaint against the second respondent that he is threatening the witnesses. 13. Learned counsel would further submit that there is no complaint by the Police that the second respondent is not cooperating with the trial or he has violated the conditions imposed by the V AMSJ, Hyderabad, while granting anticipatory bail. There is no complaint against the second respondent that he is threatening the witnesses. 13. Learned counsel for the second respondent would submit that the second respondent has complied with the directions issued by this Court, appear before the V AMSJ, Hyderabad, as and when his presence is required and also would cooperate in concluding the trial. He would further submit that the second respondent has been complying with the order dated 26.02.2020 passed by this Court in Crl.P. No. 1373 of 2020. As stated above, there is no complaint against the second respondent with regard to violation of any of the conditions imposed while granting bail or directions issued by this Court. 14. The V AMSJ, Hyderabad, in the impugned order dated 18.10.2019, relied upon the principle held by the Apex Court in Dolat Ram Vs. State of Haryana 1995 (1) SCC 349 and also Patna High Court in Usha Devi Vs. State of Bihar 2006 Crl.L.J. 4435, wherein it is held that bail once granted should not be cancelled in a mechanical manner. It is also apt to note that the Apex Court in Ms. X Vs. The State of Telangana, Criminal Appeal No. 716/2018, dated 17.05.2018, after referring to the principle held by it in Neeru Yadav Vs. State of U.P. AIR 2015 SC 3703 , Kanwar Singh Vs. State of Rajasthan 2012 (12) SCC 180 , Subramani Gopalakrishnan (2011) 5 SCC 296 and Dolatram's case (supra) and also on the facts of the said case, held that the Court must bear in mind the settled principle of law that bail once granted should not be cancelled, unless a cogent case, based on a supervening event has been made out. It is also relevant to note that in a recent judgment in Central Bureau of Investigation Vs. It is also relevant to note that in a recent judgment in Central Bureau of Investigation Vs. V. Vijay Sai Reddy (2013) 7 SCC 452 , the Apex Court held as follows: "while granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." 15. As discussed supra, the petitioner herein failed to establish that the second respondent has obtained bail on misrepresentation and by playing fraud on the Court. She has not initiated any steps against the second respondent for the said alleged misrepresentation and fraud played on the Court including proceedings under Section 340 of Cr.P.C. She did not even file any complaint either with the V AMSJ, Hyderabad which granted anticipatory bail or with Police concerned. 16. With regard to other contention of the petitioner that the second respondent has left for Saudi Arabia during the pendency of lookout notice, it is for the petitioner to take appropriate steps against the concerned officials for alleged violation of procedure including the allegation that the FRRO authorities have allowed respondent No. 2 to leave India during the pendency of LOC. As stated supra, the FRRO in its fax messages referred to supra, mentioned that on seeking clarification from the Originator, they have cleared the passenger i.e., the second respondent herein. The above stated facts would reveal that the petitioner has failed to establish any cogent case based on supervening event to cancel the anticipatory bail granted in favour of the second respondent. The above stated facts would reveal that the petitioner has failed to establish any cogent case based on supervening event to cancel the anticipatory bail granted in favour of the second respondent. As per the principle laid down by the Apex Court, this Court must bear in mind that bail once granted should not be cancelled mechanically. 17. It is opt to note that the V AMSJ, Hyderabad has granted anticipatory bail to the second respondent on the ground that the Police have completed investigation and filed charge sheet. There is no complaint that the second respondent has violated the conditions of bail. Thus, the petitioner has failed to establish any ground or circumstance that warrants this Court to cancel the anticipatory bail granted in favour of the second respondent. 18. In view of the above discussion, the V AMSJ, Hyderabad, has rightly dismissed Crl.M.P. No. 1944 of 2019 in Crime No. 330 of 2018 vide order dated 18.10.2019. Thus, the petitioner failed to establish any ground or circumstance warranting interference by this Court in the impugned order. This Criminal Petition lacks merits and, is liable to be dismissed. 19. Accordingly, I.A. No. 1 of 2020 is allowed granting leave to the petitioner to file Criminal Petition. However, the Criminal Petition is dismissed. Miscellaneous petitions pending, if any, shall stand disposed of.