Andhra Pradesh High Court - Amravati

Shaik Mahaboob Subhani vs The State Of Andhra Pradesh on 20 October, 2022

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          HON'BLE SRI JUSTICE K. SREENIVASA REDDY

               Criminal Petition No.8024 of 2022
Order:


     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.
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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.
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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. 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. 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 Ors1 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

(2011) 1 Supreme Court Cases 694

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. 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 2, wherein it is

held,

(2014) 2 Supreme Court Cases 1

"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 3, 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

(2019) 15 Supreme Court Cases 357

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