Kotyada Satya Kumar vs The State Of Andhra Pradesh
2022 Latest Caselaw 7289 AP

     THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

          CRIMINAL PETITION No.7601 OF 2022
ORDER:-

      This petition is filed under Section 438 of the Code of

Criminal Procedure, 1973, to enlarge the petitioner on bail in

the event of his arrest.

2.    The petitioner is A-1 in Crime No.78 of 2016 of Women

Police Station, Visakhapatnam City. A case under Section

498-A IPC and Sections 3 & 4 of the Dowry Prohibition Act,

1961 was registered against the petitioner and others in the

above crime.


3.    It is the case of the prosecution that the de facto

complainant lodged a complaint alleging that her marriage

with A-1 was took place on 02.06.2010 and at the time of

marriage, her parents gifted land worth of Rs.4,00,000/-

towards dowry and got registered in the name of A-1 and also

paid Rs.20,000/- adapaduchu lanchanams and sare samans

worth Rs.60,000/- and they lived happily for sometime,

thereafter, the family members of A-1 started harassing her

for each and every issue and instigated A-1 to harass her and

A-1 demanded for additional dowry and even after paid an

amount of Rs.50,000/-, they harassed her and in the year
                                2


2011 they blessed with a baby and thereafter A-1 left to

Singapore and came back in the year 2014 and then she

placed the dispute before elders and then the accused assured

to lookafter her in well manner and promised to pay monthly

maintenance of Rs.5,000/- but in vain and on the instigation

of his sister, A-1 used to beat her and A-1 harassed her to

give divorce, thereby the petitioner committed the alleged

offences hence the above crime was registered

4.    Heard Sri Mangena Sree Rama Rao, learned counsel for

the petitioner and Sri Sravan Kumar Naidana, learned Special

Assistant Public Prosecutor for the respondent-State.

5. Learned counsel for the petitioner in elaboration to what

has been raised in the grounds contended that the present

case has been foisted against the petitioner only to harass

him knowing pretty well that the petitioner is residing in

abroad. Investigation has already been completed and filed

charge sheet showing the petitioner as absconded. Even if the

FIR and charge sheet is taken on its face value, the

ingredients of Section 498-A IPC and Sections 3 and 4 of

Dowry Prohibition Act are not found place against the

petitioner. Learned counsel further contended that, the

petitioner's father is suffering from ill-health, for which, the

petitioner came down to India to attend his father, who is on

ventilator in ICU and also placed his father's photographs and

medical reports on record. Though arrest is not required for

the charged offences, the de facto complainant is influencing

the police to arrest the petitioner. The de facto complainant

and prosecution are well aware that the petitioner is in abroad

as such the question of absconding does not arise. The

petitioner is a law binding citizen and in the event, bail is not

granted there is every likelihood of arresting the petitioner

and send him to jail, hence prayed to grant pre-arrest bail to

the petitioner.

6. On the other hand, learned Special Assistant Public

Prosecutor contended that though the offences are less than

seven years, the petitioner is entitled for notice under Section

41-A Cr.P.C., as he is not available and was found

absconding, the said notice could not be served and now

charge sheet is filed after completion of investigation showing

the petitioner as absconding, as such, pre-arrest bail is not

maintainable and prayed for dismissal of the petition.

7. In reply to the said contention, learned counsel for the

petitioner has relied upon the judgment of this Court in the

case of Sheik Khasim Bi vs. State of Andhra Pradesh1

and draw the attention of this Court at para 12, which reads

as follows:

"(12) One other aspect which is highlighted by the learned Public Prosecutor is that if anticipatory bail under S.438(1) Cr.P.C is granted in a case where cognizance is already taken and a warrant is issued, then, the officer arresting will be in a predicament and he may also be guilty of contempt of court if he does not execute the warrant issued by Magistrate and since there is no provision under S.438 Cr.P.C for such a situation it must be presumed that the powers under S.438 Cr.P.C come to an end after the Magistrate takes cognizance and issues the process. We see no force in this submission. Even in a case where anticipatory bail is granted before the Magistrate takes cognizance, the accused has to be arrested and released, and sub-sec.(3) of S.438 provides for the same. Likewise, in a case where cognizance is taken and process is issued, if the Court grants anticipatory bail under S.438(1) the police officer shall execute the process, viz., the warrant, by arresting the accused and produce him before the Magistrate who shall release him on bail pursuant to the orders of anticipatory bail granted by the High Court or the Court of Session. There may also be cases where anticipatory bail is granted under S.438 (1) without knowing that cognizance has been taken and process has been issued but that does not mean the order passed by the superior

(1986) 1 ALT 286

court under a statutory provision becomes redundant."

8. With regard to the maintainability of this application,

learned counsel for the petitioner has also relied on the

decision of the Hon'ble Supreme Court in Sanatan Pandey

vs. State of Uttar Pradesh and another (Special Leave

Petition (Criminal) No.7358 of 2021) and the relevant portion

is extracted hereunder:

"3.1 .....Thus, from the aforesaid it is found that there is a prima facie case found against the petitioner for the aforesaid offences and even the charge sheet has been filed and the petitioner is found to be absconding. Therefore, this is not a fit case to grant anticipatory bail to the petitioner. The Court shall not come to the rescue or help the accused who is not co-operating the investigating agency and absconding and against whom not only non-bailable warrant has been issued but also the proclamation under Section 82 Cr.P.C. has been issued."

9. In the present case it is noted that a charge sheet has

been filed wherein A-1 was shown as absconding and the case

on hand is related to a matrimonial dispute which is filed

under Section 498-A IPC and Sections 3 and 4 of the Dowry

Prohibition Act and further no proclamation has been issued

against the petitioner. As contended by the learned counsel

for the petitioner that the prosecution and de facto

complainant are well aware that the petitioner is not in the

country and he is residing in Singapore on account of his

employment, as such they cannot say that the petitioner has

purposefully avoided investigation.

10. Taking the submissions made by both the learned

counsel and the material available on record, prima facie

there is some force in the contention raised by the learned

counsel for the petitioner that knowing pretty well that the

petitioner is working in abroad shown in as absconding and

got filed charge sheet and further taking into consideration

that the father of the petitioner is on ventilator in the hospital

and on humanitarian ground, this Court is inclined to grant

pre-arrest bail to the petitioner by taking the referred

judgment supra and also by duly taking the apprehensions

made by the learned Special Assistant Public Prosecutor into

consideration with the following conditions:

i) The petitioner/A-1 shall be released on bail in the event of his arrest in connection with Crime No.78 of 2016 of Women Police Station, Visakhapatnam City, on condition of executing a self bond for Rs.25,000/- (Rupees twenty five thousand only) with two sureties for a likesum each to the satisfaction of the Station House Officer of Women Police Station, Visakhapatnam City.

ii) The petitioner shall appear before the Station House Officer of Women Police Station, Visakhapatnam City,

once in a month i.e., on every fourth Sunday between 9.00 a.m. and 12.00 noon till filing charge sheet;

(iii) Apart from that the petitioner shall appear before the Investigating Officer whenever called by the Investigating Officer for the purpose of investigation;

(iv) The petitioner shall not directly or indirectly contact the de facto complainant or any other witnesses under any circumstances and any such attempt shall be construed as an attempt of influencing the witnesses and shall not tamper the evidence and shall co-operate with the investigation;

Further, the petitioner shall scrupulously comply with the above conditions and if there is breach of any of the above conditions, it will be viewed seriously and it also entails cancellation of the bail and in such case prosecution shall move appropriate application for such cancellation.

It is made clear that this order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation as per law and the findings in this order be construed as expression of opinion only for the limited purpose of considering bail in the above crime and shall not have any bearing in any other proceedings.

Accordingly, the Criminal Petition is allowed.

Miscellaneous applications, pending if any, shall stand closed.

___________________________ JUSTICE RAVI CHEEMALAPATI Date : 20.09.2022 SPP

THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

CRIMINAL PETITION No.7601 OF 2022

Date : 22.09.2022 SPP