HON'BLE JUSTICE G. SRI DEVI
CRIMINAL PETITION No. 6649 OF 2020
ORDER:
The present Criminal Petition is filed under Section 439 (2) of Cr.P.C. seeking cancellation of bail granted to the 2nd respondent/A1 in Crl.M.P.No.229 of 2020 dated 22.09.2020 on the file of the Additional Judicial Magistrate of First Class, Special Mobile Court- cum-II Additional Junior Civil Judge, Sanga Reddy, on the ground that the 2nd respondent is threatening the petitioner/de facto complainant day in and day out with active connivance of all his family members and with the help of anti social elements.
Brief facts of the prosecution case are that on 11.09.2020 at 6.30 P.M., the petitioner herein lodged a complaint stating that she, along with her family members, have been living in Hafeezpet. The grandmother of the petitioner is living in Mallikarjunapalli Village, Munipally Mandal and the petitioner herein went to the said village during school holidays, where she got acquaintance with the 2nd respondent and they fell in love since 2017. Under the guise of marriage, the 2nd respondent influenced the petitioner and exploited her sexually. Thereafter, the 2nd respondent failed to marry her on the ground that his parents did not agree for their marriage.
By an order, dated 22.09.2020, the Additional Judicial Magistrate of First Class, Special Mobile Court-cum-II Additional 2 Junior Civil Judge, Sangareddy, granted regular bail to the 2nd respondent/A1 on his executing a personal bond of Rs.10,000/- with two sureties to the like amount each and also directed him to appear before the concerned S.H.O. on every Sunday till filing of charge sheet.
Nearly three months later, the present Criminal Petition came to be filed by the petitioner/de facto complainant seeking cancellation of bail granted to the 2nd respondent.
Learned Counsel for the petitioner would submit that the 2nd respondent is misusing the bail granted to him. It is further submitted that after obtaining regular bail, the 2nd respondent is threatening the petitioner day-in and day-out with active connivance of all his family members and with the help of anti-social elements. It is also submitted on 07.10.2020 at 1.30 P.M., when the petitioner was alone in the house of her grandmother at Thatipally Village, the 2nd respondent, along with some anti-social elements, came there with an intent to kill the petitioner. Thereupon, the 2nd respondent manhandled the petitioner along with his accomplices, abused her in filthy language, and threatened her for filing criminal case against him and his family members and also to kill her and her family members brutally, if she is not going to withdraw the criminal case. It is further submitted that the petitioner accompanied by her parents, approached the Police and lodged a written complaint against the 2nd respondent and his other 3 accomplices with a request to take immediate action against them in accordance with law. Though the police issued a receipt, but they did not take any action against the accused in this regard. It is further submitted that when the petitioner was going to college and coming back to her residence after attending classes, some unknown miscreants used to follow her and abuse her in filthy language and tried to attack her physically and also threaten to pour acid on her face and to kill her and also her family members. It is also submitted that there is a serious threat to the life of the petitioner and also to the lives of her family members and, therefore, the bail granted to the 2nd respondent/A1 is liable to be cancelled.
A counter came to be filed by the 2nd respondent/A1 stating that the grounds raised in the petition are vague, baseless and without iota of evidence. The trial Court granted bail to the 2nd respondent by imposing conditions. It is stated that the 2nd respondent never threatened the petitioner and her family members with the help of anti-social elements. There is no such incident after release of the 2nd respondent and the complaint dated 07.10.2020 is created one for the purpose of filing the present Criminal Petition. It is also stated that the 2nd respondent and his family members were falsely implicated in the case at the instance of rival group though they have not committed any offence. Though the imprisonment for the alleged offences is below seven years, the police did not follow the guidelines of the Apex Court in Arnesh Kumar v. State of 4 Bihar and another1. It is further stated that all the allegations raised in the Criminal Petition are false and hence the same is liable to be dismissed.
It is well established law that different yardsticks have to be adopted for cancellation of bail and interference with an order granting bail. The Court should take into consideration the post bail conduct and supervening circumstances for deciding as to whether it requires cancellation of bail.
In Sanjay Chandra v. Central Bureau of Investigation2 the Apex Court held as under:
"In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principal that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands, that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any 1 AIR 2014 SC 2756 2 (2012) 1 SCC 40 5 person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
In Subhendu Mishra v. Subrat Kumar Mishra3 the Apex Court held as under:
".............very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."
3 1999 Crl.L.J. 4063 6 In Kanwar Singh Meena v. State of Rajasthan4, the Apex Court held as under:
"While cancelling bail under Section 439 (2) Cr.P.C. the primary considerations which weigh with the Court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the Court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc., would not deter the Court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact of the society."
It is a settled law that bail granted can be cancelled on the ground which has arisen after the bail was granted. It is generally presumed that at the time of hearing of the bail application, the prosecution has raised all possible grounds which could go against 4 2013 (1) ALD (Crl.) 85 7 the accused in the matter of bail and, therefore, when once bail has been granted to the accused, the prosecution cannot have the bail cancelled on some circumstances which may have existed before the grant of bail.
The ground of cancellation of bail and grounds of rejection of bail are two different circumstances and hence the approach of the Court should also be different. At the time of hearing the bail application, the Court looks at the possibilities of the violation of bail conditions and the Court has to be more open and flexible, whereas while hearing the cancellation application, the Court has to be more rigid and it has to examine not only the possibility of violations but whether the actual violation has taken place or not. The Court should be more rigid here and actual proof of violation is required.
In the instant case, no incriminating evidence has been brought by the petitioner which could create an adverse opinion regarding the conduct of 2nd respondent after grant of bail. The power of cancellation of bail must be exercised with care and circumspection of cogent and overwhelming circumstances which are necessary for an order seeking cancellation of bail. Where there is no violation of the terms of order granting bail, cancellation is not justified. The bail already granted should not be cancelled in a routine manner as it jeopardize personal liberty of the person. 8
Having regard to the circumstances stated above and in view of the judgments referred to above, the Criminal Petition is dismissed. But, however, the 2nd respondent is directed to stay at Mallikarjunapally Village, Munipally Mandal, Sanga Reddy District, Telangana State and report before the concerned Police Station twice in a week i.e. on every Wednesday and Sunday between 10.00 A.M. and 5.00 P.M. until further orders.
Miscellaneous petitions, if any, pending shall stand closed.
____________________ JUSTICE G. SRI DEVI 05.03.2021 gkv/Gsn