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2022 DIGILAW 1082 (AP)

Shaik Mahaboob Subhani v. State Of Andhra Pradesh

2022-10-20

K.SREENIVASA REDDY

body2022
ORDER : 1. This Criminal Petition, under Section 438 Cr.P.C. has been filed by the petitioner/Accused No.1 in Crime No.64 of 2022 of Disha UPS, Nellore, registered for the offences punishable under Sections 498-A 313, 342, 307 r/w 34 of the Indian Penal Code, 1860 and 3 and 4 of the Dowry Prohibition Act. 2. Brief facts of the case are that, the de facto complainant is working as Woman Police Constable at Santhapet Police Station, Nellore and A1/the petitioner herein who is her husband is working as Sub-Inspector of Police in the same police station at relevant point of time. The petitioner/accused deceived the de facto complainant with his sweet words under the pretext of love and enjoyed her sexually. When the de facto complainant asked him to marry her, he refused. On reporting the matter to the higher-ups by the de facto complainant, the accused, to circumvent from being punished for the offence under Section 376 IPC, married her on 26.8.2020 in a temple. Both the de facto complainant and A1 while living together in a rented house in Podalakur Road Center, Nellore, she conceived in the month of February, 2021. The petitioner then forced her to go for abortion but she refused. Thereby on 04.3.2021, the petitioner beat her and also forcibly had sex with her, with a view to get abortion. On 16.3.20221, it is alleged that the petitioner quarelled with her as she did not go for abortion and gave punch in her stomach with his right hand, thereby she suffered stomach pain and started bleeding. On 17.3.2021, she was examined by the doctor and got scanned and it revealed that she got missed abortion and doctors advised her to take rest. Again she was forced to go for abortion on 18.3.2021, but she refused. It is alleged that on 21.3.2021 again the petitioner raised dispute and threatened that by any means he will see that her pregnancy is terminated and on the same night he again fisted in her stomach and also beat her several times. She fell down and felt uneasy in her stomach and bleeding started. The petitioner threatened her that if she reveals that he beat her, he would foist false case against her father and sister and would send them to jail. On 22.3.2021, she underwent Scanning at Ramachandra Reddy Hospital. She fell down and felt uneasy in her stomach and bleeding started. The petitioner threatened her that if she reveals that he beat her, he would foist false case against her father and sister and would send them to jail. On 22.3.2021, she underwent Scanning at Ramachandra Reddy Hospital. In the scanning, it was found that she had missed abortion. The fetus was not having heartbeat. She was informed by the doctors that she cannot conceive and gave some tablets advising her to admit in the hospital. She joined in the hospital on 23.3.2021. On 15.7.2022, the mother-in-law of the de facto complainant came to her house. On 11.8.2022 Jarida and Shabeena the sisters of A1 also came to her house and from 13.8.2022 they all started saying to give divorce as there is an offer of Rs.50,00,000/- towards dowry for the petitioner/A1. They used to demand her to bring Rs.20,00,000/- so as to allow her to continue as wife of A1. In fact, at the time of marriage, she gave Rs.3,00,000/- to A1. A1 also took Rs.1,00,000/- when his father was suffering from Covid- 19. A1 never spent a rupee for her after the marriage and on the other hand she used to lead marital life from 30.7.2022 with her own salary. On 02.9.2022, A1 by raising quarrel, caught hold of tuft and tried to hit her head against a wall, but she escaped by keeping her hands against the wall. On 09.9.2022 the petitioner/A1 gave a fist blow with a view to kill her. A1 and her mother-in-law locked her in the house and then she gave ring to officers and dialed 100. A1 said to have stated on 12.9.2022 that he would not lead conjugal life with her and he is deserting her and that she may go for any case and that he is going on sick leave, hence no police can do anything. Her husband and her mother-in-law left the village on 13.9.2022 and they are not responding to her phone call. Hence the report. 3. Learned counsel for the petitioner/A1 contended that even accepting the entire allegations against the petitioner, no offence alleged is made out against him. The reason for filing this case is that the petitioner filed a petition for divorce under Section 27(1)(d) of the Special Marriage Act on the ground of cruelty before the Family Court, Nellore on 21.9.2022. 3. Learned counsel for the petitioner/A1 contended that even accepting the entire allegations against the petitioner, no offence alleged is made out against him. The reason for filing this case is that the petitioner filed a petition for divorce under Section 27(1)(d) of the Special Marriage Act on the ground of cruelty before the Family Court, Nellore on 21.9.2022. Thus, on coming to know of filing of the said case, the de facto complainant resorted in filing the present complaint on 28.9.2022. He also submitted that if the accusation that the petitioner has been demanding and threatening the de facto complainant to go for abortion and also if he had beat her on 16.3.2021 and caused bleeding, which resulted in abortion, he would not have gone for a legally valid marriage on 02.9.2021 under the Special Marriage Act, since the earlier marriage on 26.8.2020 was in a temple and it is not valid one. It is contended that if there was harassment even from the month of March, 2021, the de facto complainant would not have kept silent without giving report immediately. This present report given to the police is after a long lapse of time and as such it can be inferred that as counterblast to the divorce petition filed by the petitioner, she resorted to give report at belated stage. It is contended that if the petitioner is arrested and remanded to the judicial custody he will loose his job. Hence, the learned counsel for the petitioner prays that the anticipatory bail may be granted to the petitioner. 4. On the contrary, learned counsel for the de facto complainant stated that prima facie, there are accusations against the petitioner. On perusal of the report, it goes to show that the de facto complainant was harassed by the accused and by virtue of the harassment and beating by A1, the de facto complainant lost her fetus. On the said ground, learned counsel for the de facto complainant argued that the petitioner is not entitled for Anticipatory Bail. 5. The learned Special Assistant Public Prosecutor too concurred with the argument advanced by the learned counsel for the de facto complainant. 6. Heard and perused the record. 7. Admittedly, there is marriage between the de facto complainant and the petitioner herein. 5. The learned Special Assistant Public Prosecutor too concurred with the argument advanced by the learned counsel for the de facto complainant. 6. Heard and perused the record. 7. Admittedly, there is marriage between the de facto complainant and the petitioner herein. It is alleged that in pursuance of the said marriage, there arose some disputes between the de facto complainant and the petitioner. Both the de facto complainant and the petitioner are working in the same police station as Woman Constable and Sub-Inspector of Police respectively. It is alleged that when the de facto complainant became pregnant, the petitioner herein said to have beat on her stomach on 16.3.2021 with a view to get miscarriage. 8. Learned counsel for the petitioner has relied upon the judgment of the Hon’ble Supreme Court in Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors., [(2011) 1 Supreme Court Cases 694] on 2 December, 2010, wherein it was held, “The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 9. On perusal of the above judgment, it is clear that there shall not be any apprehension that the petitioner would flee from justice. It is also held in the above judgment that there shall not be any likelihood of repeating the similar or other offences. It is not the case where by virtue of granting anticipatory bail, it would affect large number of people. Here the dispute is between the two individuals. There is absolutely no likelihood that the petitioner would flee from justice as he is working as Sub- Inspector of Police. The whole crux of case is whether in response to the case filed by the petitioner herein, the de facto complainant resorted to file the present complaint. There is any amount of ambiguity whether the alleged incidents said to be taken place as suggested by the prosecution. 10. It is also pertinent to mention here, the judgment of the Hon’ble Apex Court in Lalita Kumari Vs. Government of Uttar Pradesh and others, [(2014) 2 Supreme Court Cases 1], wherein it is held, “As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. 10. It is also pertinent to mention here, the judgment of the Hon’ble Apex Court in Lalita Kumari Vs. Government of Uttar Pradesh and others, [(2014) 2 Supreme Court Cases 1], wherein it is held, “As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.” 11. In the above judgment, the Hon’ble Supreme Court has categorically stated that in respect of the offences relating to matrimonial disputes and other cases, if there is delay of over three months in reporting the matter without satisfactorily explaining the reasons for delay, a preliminary enquiry has to be conducted by the police. 12. In the aforesaid circumstances, in the present case, the complaint has been registered on the very same day when the de facto complainant has resorted in filing the present complaint. In view of the said circumstances there is any amount of doubt that arise whether the alleged incidents had taken place as suggested by the prosecution. Further the de facto complainant is not a rustic villager, but he is working as Police Constable. No doubt these are essential things which are to be established in the course of trial. At this stage, the petition on hand is only in resepct of the anticipatory bail application. Admittedly, the petitioner is working as Sub-Inspector of Police. If he is arrested, there is every chance that he will loose his job. 13. Learned counsel for the de facto complainant relied upon the judgment in Rashmi Chopra Vs. State of Uttar Pradesh and another, [(2019) 15 Supreme Court Cases 357], wherein it is held, “Coming back to the allegations in the complaint pertaining to Section 498A and Section 3/4 of D.P. Act. A perusal of the complaint indicates that the allegations against the appellants for offence under Section 498A and Section 3/4 of D.P. Act are general and sweeping. A perusal of the complaint indicates that the allegations against the appellants for offence under Section 498A and Section 3/4 of D.P. Act are general and sweeping. No specific incident dates or details of any incident has been mentioned in the complaint. The complaint having been filed after proceeding for divorce was initiated by Nayan Chopra in State of Michigan, where Vanshika participated and divorce was ultimately granted. A few months after filing of the divorce petition, the complaint has been filed in the Court of C.J.M., Gautam Budh Nagar with the allegations as noticed above. The sequence of the events and facts and circumstances of the case leads us to conclude that the complaint under Section 498-A and Section 3/4 of D.P. Act have been filed as counter blast to divorce petition proceeding in State of Michigan by Nayan Chopra.” 14. In view of parameters that have been mentioned in the above case also, it is clear that in case if there is no danger that the accused would flee from the justice and if there is no chance of accused repeating the same offence, the Hon’ble Supreme Court categorically stated in those circumstances, bail can be granted in favour of the petitioner. 15. In view of the aforesaid circumstances, this Court is inclined to order as follows. 16. In the event of arrest of the petitioner/Accused, he shall be enlarged on bail on he executing personal bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties for the like sum each to the satisfaction of the Investigating Officer. After release, the petitioner shall make himself available for interrogation by the investigating officer as and when required, and he shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case. The Criminal Petition is, accordingly, allowed.