Telangana High Court
Humera Asiya vs The State Of Telangana on 10 April, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
CRIMINAL PETITION No.11109 of 2023
O R D E R:
This Criminal Petition is filed by the petitioner - respondent No.2 - de facto complainant seeking cancellation of bail granted to respondent No.2 herein - petitioner - A1 in Criminal Petition No.7569 of 2023 filed for grant of regular bail in Crime No.17 of 2023, registered by the Film Nagar Police Station, Hyderabad for the offences punishable under Sections 376(2)(n), 417, 420 and 506 of IPC.
2. The brief facts of the case that led to the filing of the complaint by the de facto complainant were that the petitioner joined a gym by name 'Base Gym' on 16.07.2022 and met with A1, who introduced himself as gym owner and coach. The petitioner made payment for one year membership in the gym and for personal training. A1 - Asim Ali Khan was her personal trainer in the gym. During the course of training, he informed the de facto complainant that he was single and looking for marriage. One day, during working out, he tried to touch the petitioner in an inappropriate manner. The de facto complainant lodged a report against him at the reception, later he apologized. One day when the de facto complainant was working out, A1 added something in the complainant's water saying that it was a pre-workout supplement. After taking 2 Dr.GRR, J crlp_11109_2023 it, the de facto complainant started feeling dizziness. The accused No.1 offered to drop her at home. Though initially she refused, as she was feeling weak, she could not object the same. But as soon as the complainant entered into his car, A1 started misbehaving with her. Though the complainant tried to open the door, A1 locked the car and also grabbed her phone and took it. By that time, she lost all energy. In such helpless condition, A1 forcefully raped her. He also took a video and threatened the complainant stating that if she disclosed it to anyone or stopped coming to gym, he would post her video on social media. A1 started exploiting her on the threat of making the video viral and extorted an amount of Rs.6,00,000/- from the complainant. She paid an amount of Rs.1,00,000/- through online transaction and gave five tulas of gold biscuit and cash. He forced the complainant several times to get physical with him and promised the complainant that he would marry her. But later she came to know that A1 was a married person and was also having a child of three years old. She lodged a complaint against A1 with SHE teams. Before them A1 agreed to marry her. The brothers of A1 by name Sikander Ali Khan, Azam Ali Khan and Aslam Ali Khan gave surety to A1 and assured her that they would take the responsibility and help the complainant to marry A1 Asim Ali Khan. But later, they all gave a go back to their promise. The brothers of A1 and the wife of A1 by name Mehnaz and his brother's wife by name Sana started threatening the complainant that if she would think of marrying or complaining about A1, they 3 Dr.GRR, J crlp_11109_2023 would kill her or would ruin her reputation and image in the society. A1 demanded Rs.10,00,000/- from the complainant for renovation of his parents' house, for which the complainant denied. As such, his family developed grudge on her as she could not finance them. She lodged a complaint before the Station House Officer Golconda. But no action was taken against the accused. As such, she lodged another complaint with Film Nagar Police. When the police failed to register the case, she filed Writ Petition No.14600 of 2023. On receiving the notices, the Assistant Government Pleader informed that a case was registered as Crime No.17 of 2023 on the file of PS Film Nagar. The Police Film Nagar arrested A1 on 16.06.2023. A1 applied for regular bail before this Court vide Criminal Petition No.7569 of 2023. The de facto complainant got herself impleaded in the said petition and on hearing all the parties, the Court passed an order enlarging the respondent No.2 - A1 on conditional bail on 19.08.2023. The following conditions were imposed by the Court while granting bail:
(i) The petitioner - A1 shall execute personal bond for a sum of Rs.50,000/-
(Rupees Fifty thousand only) with two sureties for a like sum each to the satisfaction of the XVII Additional Chief Metropolitan Magistrate at Hyderabad.
(ii) The petitioner - A1 shall surrender his passport before the concerned Court. In the event of the petitioner not having a passport, an affidavit to that effect shall be filed before the concerned Court.
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(iii) The petitioner - A1, after release shall appear before the concerned Station House Officer, as and when he is required for the purpose of investigation.
(iv) The petitioner - A1 shall appear on the date of hearing and shall not in any manner try to contact de facto complainant or her relatives, failing which, the bail granted is liable to be cancelled.
(v) The petitioner - A1 shall abide by the other conditions stipulated in Section 437(3) of Cr.P.C.
3. Heard Md. Fasiuddin, learned counsel for the petitioner - complainant and the learned Additional Public Prosecutor for the respondent No.1 and Md. Muzaffar Ullah Khan, learned counsel for the respondent No.2 - A1.
4. Learned counsel for the petitioner submitted that though a condition was imposed on respondent No.2 - A1 while granting bail that he should not contact the de facto complainant or her relatives in any manner, the respondent No.2 and the other accused persons were calling the de facto complainant from several numbers and were threatening her to withdraw the case and asking her to marry him. The petitioner - de facto complainant had recorded all voice call recordings from the accused and his family members and had given seven phone numbers, from which, she had received such calls. He also enclosed the messages received by the de facto complainant on whatsapp chat and the call log details of those numbers vide additional material papers filed on 13.03.2024. 5
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5. Learned counsel for the respondent No.2 - A1 on the other hand contended that the petitioner - de facto complainant had not specifically stated on which number she had received the calls and no evidence was filed at the time of seeking cancellation of bail. Except making vague and bald allegations, nothing was mentioned in the petition as to how many calls, the de facto complainant had received after granting bail on 19.08.2023. She had not stated to whom the said phone numbers belonged to and on what number she received the said calls. The petitioner was alleging that the respondent No.2 was forcing her to withdraw the case and marry her, whereas in the complaint she stated that she lodged the complaint as respondent No.2 - A1 refused to marry her. She was taking contrary stands, as such, an adverse inference can be drawn that she was giving untrue statements. The plea taken by the petitioner on one hand that she was receiving phone calls and that they were trying to extract money from her and on the other hand that they were forcing her to marry A1 and to withdraw the case were inconsistent with each other. No material was placed along with the petition to come to a conclusion that there was any truth in her allegations. She had not mentioned about lodging any complaint with regard to receiving of threatening calls from respondent No.2 - A1 or any other accused persons. As such, she failed to make out a case that the respondent No.2 was interfering with the process of administration of justice by way of threatening the petitioner. He further contended that the respondent No.2 was complying 6 Dr.GRR, J crlp_11109_2023 with the conditions imposed against him at the time of granting bail and he did not call the petitioner or any of her relatives till date after he was enlarged on bail.
6. Learned counsel for respondent No.2 relied upon the judgments of the Hon'ble Apex Court in Dolat Ram and Others v. State of Haryana 1, Bhuri Bai v. The State of Madhya Pradesh 2, Myakala Dharmarajam and Others v. State of Telangana and Another 3, of the High Court of Madras in Abdul Malik v. The State represented by the Inspector of Police, W.25, All Women Police Station, Chennai 4 , of the High Court of Karnataka in Mahantesh v. State of Karnataka 5 and of the High Court of the Kerala at Ernakulam in Godson v. State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam 6.
7. Learned Additional Public Prosecutor representing respondent No.1 stated that the investigation in Crime No.17 of 2023 of PS Film Nagar was completed and charge sheet was filed before the XVII Additional Chief Metropolitan Magistrate, Hyderabad and the same was numbered as PRC No.390 of 2023. The petitioner - de facto complainant had also lodged a report 1 (1995) 1 SCC 349 2 2022 Live Law (SC) 956 3 2020 (2) ALD (Criminal) 10 (SC) 4 2021 Supreme (Madras) 247 5 2019 Supreme (Karnataka) 779 6 (2022) 2 KLD 447 7 Dr.GRR, J crlp_11109_2023 before Humayun Nagar Police on 04.12.2023 stating that four persons Mehnaz (wife of A1), Sana (Wife of Sikander Ali Khan - brother of A1), Azam Ali Khan (brother of A1) and Asim Ali Khan (A1) were frequently calling her with different phone numbers and blackmailing her by demanding money and threatening her with dire consequences to withdraw the case in FIR No.17 of 2023 of Film Nagar Police Station. She also stated that she was getting threatening calls from unknown numbers, VOIP Nos., and voice notes and messages from unknown Instagram and whatsapp accounts, which were identical. The complainant alleged that the said persons were sending messages and then they were deleting or blocking accounts, so that no proof would remain. She further stated that they were also following her on streets and roads. She also gave a vehicle No.TS-13-EW-8765, through which they chased her and gave about nine phone numbers. As the offences under Sections 504 and 506 of IPC were non-cognizable, the Police after obtaining permission from the Court registered a case in Crime No.494 of 2023 on 12.12.2023. The Investigating Officer examined the complainant and recorded her statement. Her statement corroborated with the facts of the FIR. Notices were served under Section 41-A Cr.P.C. to A1 and A4 on 12.12.2023 and on 14.03.2024 respectively. Subsequently, the Investigating Officer also addressed a letter to the Deputy Commissioner of Police, South West Zone, Hyderabad City with a request to forward a letter to the concerned service provider to furnish the call data records 8 Dr.GRR, J crlp_11109_2023 of the phone numbers given by the complainant. The said information was awaited.
8. On hearing the learned counsel for the petitioner and the learned counsel for the respondent No.2 - A1 and the learned Additional Public Prosecutor, the point that now arises for consideration is whether the bail granted to the respondent No.2 - A1 is liable to be cancelled?
9. As seen from the judgments of the Hon'ble Apex Court in various cases as in Dolat Ram and Others v. State of Haryana (cited supra):
"4.Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. 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 not 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."9
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10. The Hon'ble Apex Court in Bhuri Bai v. The State of Madhya Pradesh (cited supra) also held that:
"19. It remains trite that normally, very cogent and overwhelming circumstances or grounds are required to cancel the bail already granted. Ordinarily, unless a strong case based on any supervening event is made out, an order granting bail is not to be lightly interfered with under Section 439(2) Cr.P.C."
11. In Myakala Dharmarajam and Others v. State of Telangana and Another (cited supra), the Hon'ble Apex Court while referring to its earlier case, held that:
"7. In Raghubir Singh v. State of Bihar [(1986) 4 SCC 481 = AIR 1987 SC 149] this Court held that bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. The above grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to."10
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12. The High Court of Kerala in Godson v. State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam (cited supra) while considering whether a subsequent crime registered against the accused would interfere with conduct of a fair trial of a case in which he was involved, on extracting the judgment of the Hon'ble Apex Court and a judgment of the High Court of Kerala in X Victim in SC No.211 of 2018 of POCSO Court v. State of Kerala and Others [2019 (3) KHC 26], held that:
"8. In Dataram Singh v. State of Uttar Pradesh [(2018) 3 SCC 22], it was observed by the Hon'ble Apex Court in the manner as follows:
"It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail 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 concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused 11 Dr.GRR, J crlp_11109_2023 absconding is another reason justifying the cancellation of bail. In other words, 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."
Therefore, while considering an application to cancel the bail on the ground of non compliance of the conditions, the court has to consider the question whether the alleged violation amounts to an attempt to interfere with the administration of justice or as to whether it affects the trial of the case in which the accused is implicated. In X Victim SC No. 211 of 2018 of POCSO Court v. State of Kerala and Others [2019 (3) KHC 26], this Court laid down the principles with regard to the nature of the enquiry to be conducted by the court concerned, while considering an application for cancellation of bail. In paragraph 9 of the said judgment, it was observed as follows:
"9. But in a case where the victim or the witnesses specifically complains of threat and intimidation and the said aspects are projected either by victim or by the prosecution before the Bail Court through an application as referred to in Ext.P-5, then it is bounden duty of the Bail Court to consider the correctness or 12 Dr.GRR, J crlp_11109_2023 otherwise of the allegations in a summary manner after affording an opportunity of being heard to the prosecution as well as to the affected accused concerned whose bail is ought to be cancelled and if possible to the victim as well, in a case like this. In such process of enquiry, the Bail Court could call for the records if any in relation to those allegations and if a separate crime has been registered in that regard, the records in those crimes should also be perused by the Bail Court in order to make an enquiry in a summary manner as to the truth or otherwise of the allegations therein, and after affording reasonable opportunity of being heard to the prosecution, accused and the victim, the Bail Court is expected to discharge its solemn duty and function to decide on the correctness or otherwise of the allegations in such a summary manner and the evidentiary assessment thereof could be on the basis of the overall attendant circumstances as well as the attendant balance of probabilities of the case. Based on such a process, the Bail Court is obliged to take a decision whether the 13 Dr.GRR, J crlp_11109_2023 bail conditions have been so violated and if it is so found that the bail conditions has been violated then it is the duty of the Bail Court to cancel the bail, but certainly after hearing the affected party as aforestated. So also, if the said enquiry process reveals that the truth of the above said allegations has not been established in a convincing manner in such enquiry process, then the Bail Court is to dismiss the application to cancel the bail. But the Bail Court cannot evade from the responsibility by taking up the specious plea that since the very same allegations also form subject matter of a distinct crime then the truth or otherwise of the allegations is to be decided by the Criminal Court which is seisin of that crime through the process of finalization of said impugned criminal proceedings by the conduct and completion of trial therein."
13. All the above judgments would show the precautions to be taken by the Court and the principles to be considered for cancellation of bail. 14
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14. The petitioner - de facto complainant was seeking for cancellation of bail of the respondent No.2 - A1 on the ground that the respondent No.2 - A1 and his relatives were contacting her and threatening her to withdraw the case violating the condition imposed by this Court in Criminal Petition No.7569 of 2023 in Crime No.17 of 2023 of PS Film Nagar, wherein it was held that:
"iv. The petitioner - A1 shall appear on the date of hearing and shall not in any manner try to contact de facto complainant or her relatives, failing which, the bail granted is liable to be cancelled."
15. She stated that she recorded all the voice call recordings from the accused and his family members and filed the screen shots of the calls that were received by her. The said screen shots would reveal the numbers from which she received the calls, the dates, voice messages along with the time of the said calls and she also stated the names of the persons who messaged to her and the content of the messages. The transcript of the messages was given in Page Nos.21-30 of the additional material papers filed by the learned counsel for the petitioner on 13.03.2024. They would show that those persons were threatening her to take the case back or else she would lose her life and that they would make her photos and videos viral, so that, she could not move in the locality and that they would see as to how she could be married. They also threatened that her brother would also be ashamed in his college. The call log details filed her would also disclose that she received calls on 06.09.2023, 07.09.2023, 15 Dr.GRR, J crlp_11109_2023 11.09.2023, 13.09.2023, 14.09.2023, 16.09.2023, 17.09.2023, 05.10.2023, 06.10.2023, 07.10.2023, 08.10.2023, 09.10.2023, 11.10.2023 and 12.10.2023. On the same day also, several calls were received from several phone numbers. The bail was granted to respondent No.2 - A1 on 19.08.2023 imposing the condition that he should not contact the victim. But, however, the above details filed by the complainant would disclose that the respondent No.2 - A1 and his family members were making calls to the de facto complainant - victim continuously during the months of September and October, 2023 after granting of bail to A1 in the month of August, 2023 and continuously harassing her.
16. The contention of the learned counsel for respondent No.2 that no complaint was lodged by the de facto complainant between 19.08.2023 and 04.11.2023 and that she lodged the complaint on 04.12.2023 only after the cancellation of bail petition filed by her on 01.11.2023, does not hold merit, as the above details filed by her would prima facie prove her contention about the harassment caused by the respondent No.2 - A1 and his family members during the above period.
17. In the complaint lodged by her before the Humayan Nagar Police, she gave nine phone numbers. One of which was stated to be pertaining to the respondent No.2 - A1 bearing No.7660941249 and of his wife Mehnaz bearing No. 9676350814. The respondent No.2 might not be calling from his phone 16 Dr.GRR, J crlp_11109_2023 number only. He might be using the phone numbers of others for making such threatening calls or might be deputing his family members on his behalf to make such threatening calls, which can also be considered as violation of the bail condition stipulated by this Court.
18. The contention of the learned counsel for the respondent No.2 - A1 was that without making any investigation that the calls were connected to the accused, bail granted to respondent No.2 - A1 cannot be cancelled. As per the report filed by the Sub-Inspector of Police of PS Humayan Nagar, they have addressed a letter to the service provider to furnish the call data records of the above phone numbers given by the de facto complainant. The Police or the service provider might take their own sweet time to provide the said information or to conduct the investigation. When the petitioner - de facto complainant - victim brought to the notice of the Court about the threats made by them that the respondent No.2 - A1 and his family members were interfering with her liberty, and she also filed prima facie proof of their voice call recordings, this Court cannot keep quiet till the investigation in Crime No.494 of 2023 is completed.
19. In view of the prima facie evidence produced by the petitioner - de facto complainant, which would prove that the respondent No.2 - A1 had violated the condition of bail imposed by this Court while granting bail directing him not to contact the de facto complainant, but he and his family members were 17 Dr.GRR, J crlp_11109_2023 contacting her and also threatening her, this Court considers it fit to cancel the bail granted to respondent No.2 - A1.
20. In the result, the Criminal Petition is allowed and the respondent No.2 - A1 is directed to be taken into custody immediately, as his moving freely is causing a threat to the victim and it is also causing hindrance to her to give evidence in a free manner and coming in the way of conducting a fair trial.
As a sequel, miscellaneous applications pending in this petition, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 10th April, 2024 Nsk.