Andhra HC (Pre-Telangana)
Thameeru Yogeshwar Rao vs Counsel For The on 3 December, 2013
Author: R.Kantha Rao
Bench: R.Kantha Rao
THE HON'BLE SRI JUSTICE R.KANTHA RAO
CRIMINAL PETITION No.14353 of 2013
03-12-2013
Thameeru Yogeshwar Rao....Petitioner/Accused
The State of Andhra Pradesh Rep.by Public Prosecutor, High Court of Andhra
Pradesh, Hyderabad .....Respondent
Counsel for the Petitioner: Sri CHALLA AJAY KUMAR
Counsel for the respondent: PUBLIC PROSECUTOR
<Gist:
>Head Note:
?Cases Referred:
1. AIR 2008 SC 2318
2. 2009 Crl.L.J 1943
THE HON'BLE SRI JUSTICE R.KANTHA RAO
CRIMINAL PETITION No.14353 of 2013
ORDER:
This Criminal Petition is filed under Section 438 of Cr.P.C. seeking anticipatory for the petitioner/accused in Cr.No.386/2013 of Saidabad Police Station, Hyderabad District, registered for the offences punishable under sections 354-A(1)(i) and 506 of IPC.
I have heard the learned counsel appearing for the petitioner/accused and the learned Additional Public Prosecutor, representing the State. Basing on the report lodged by the de facto complainant by name Kum.Amera Tabassum, a girl, aged 14 years, a student of 9th class, the Station House Officer, Saidabad Police Station registered a case in Cr.No.386/2013 against the petitioner/accused for the offences punishable under Sections 354-A(1)(i) and 506 of IPC. The contents of the First Information Report are as follows:
"My name is Kum.Amera Tabassum, age 14 years. In the month of June, 2013 I joined in 9th class at Vikasa Bharathi High School. On 12.11.2013 at 10.30 A.M. my principal Yogeshwar Rao called me into his office room with Biology book, he uttered some filthy words and put his hands on my waist and switched off the lights in the room and removed my Tie. Being afraid I came out from his room. On the next day i.e. on 13.11.2013 we all went to Picnic to Sanjeevaiah park, where my principal Yogeshwar Rao looked into my eyes. For the past 2 months my principal was calling me into his room on some pretext and was putting his hands on my chest and other parts of the body and also he threatening me not to reveal this to anybody. I am not going to school since 3 days due to fear. Today my parents asked me as to why you were not going to school. On that I stated the same to my parents. Hence, I request you to take necessary action against my principal Yogeshwar Rao."
The police took up investigation. The petitioner/accused was arrested and was remanded to judicial custody. Later on, he was released on bail by the learned VII Additional Chief Metropolitan Magistrate, Hyderabad considering that the offences alleged to have been committed by the petitioner/accused are under Section 354-A(1)(i) and 506 of IPC. Subsequently, according to the prosecution, the mother of the de facto complainant Smt.Jeelani Begum came to the police station along with the de facto complainant (victim girl) and lodged another report stating that on 19.11.2013 at 10.40 p.m. 8 unknown male persons and 2 ladies came to her house, abused her and threatened her with dire consequences and insisted her to withdraw the case which was filed by her daughter against the petitioner/accused, otherwise they would pour acid on her family members and see the end of her family and accordingly requested to take necessary action against the petitioner/accused and others and save her family members.
After lodging of the said report, the Investigating Officer filed a memo into the Court of the VII Additional Chief Metropolitan Magistrate, Hyderabad requesting the Court to add Sec.9 (f) of the Protection of Children from Sexual Offences Act, 2012 and also to cancel the bail granted to the petitioner/accused.
Subsequently, the respondent/complainant filed a petition under Sec.439(2) of Cr.P.C before the 1st Additional Metropolitan Sessions Judge, Hyderabad seeking cancellation of bail. The learned Sessions Judge allowed the said petition and cancelled the bail granted by the learned VII Additional Chief Metropolitan Magistrate, Hyderabad. The present criminal petition is filed by the petitioner/accused apprehending arrest by the police in view of cancellation of bail.
It is contended on behalf of the petitioner/accused that the learned 1st Additional Metropolitan Sessions Judge, Hyderabad ought not to have cancelled the bail on an application filed for alteration of section of law and the same cannot be converted into an application for cancellation of bail. Bail once granted cannot be cancelled because considering the allegations mentioned in the First Information Report the bail was granted by the learned VII Additional Chief Metropolitan Magistrate, Hyderabad to the petitioner/accused, and basing on the same First Information Report, the learned 1st Additional Metropolitan Sessions Judge, Hyderabad erred in canceling the bail granted to the petitioner/accused. It is submitted that the petitioner/accused is falsely implicated in this case. It is further submitted that the police basing on the report of the school authorities having registered a case under sections 448, 427 and 323 of IPC did not take any action against the de facto complainant herein and her people. The learned counsel appearing for the petitioner/accused has relied on a judgment of the Hon'ble Supreme Court in Dinesh M.N. (S.P) v. State of Gujarat1 and a judgment of the Madras High Court in P.Muthupandi v. State2 in support of his submissions.
On the other hand, the learned Additional Public Prosecutor contended that since the learned VII Additional Chief Metropolitan Magistrate, Hyderabad erroneously granted bail to the petitioner/accused initially considering that the First Information Report disclosing the offences only under Section 354-A (1)(i) and 506 of IPC, the learned 1st Additional Metropolitan Sessions Judge, Hyderabad, having considered the actual offence made out from the allegations levelled against the petitioner/accused in the First Information Report, rightly cancelled the bail and therefore, the petitioner/accused, having regard to the facts and circumstances of the case, is not entitled for anticipatory bail. In Dinesh M.N. (S.P) v. State of Gujarat (1 supra) the Hon'ble Supreme Court held that bail cannot be cancelled by resorting to re-appreciation of evidence. But in the same decision, the Hon'ble Supreme Court observed that the Court can consider whether irrelevant materials were taken into consideration for granting bail and those irrelevant materials should be of substantial nature and not of a trivial nature.
In P.Muthupandi v. State (2 supra) learned single Judge of Madras High Court held that the paramount consideration for cancellation of bail is fleeing from justice and tampering with evidence, and if no ground is made out to the effect that accused person abused or misused the benefit of freedom of grant of bail, bail cannot be cancelled.
A bare reading of the contents of the First Information Report would indicate that the petitioner/accused is alleged to have committed offences punishable under Sections 354 of IPC and 9 (f) of the Protection of Children from Sexual Offences Act, 2012. As the offence under Section 354 of IPC is triable by a Court of Sessions, the learned VII Additional Chief Metropolitan Magistrate, Hyderabad is not supposed to grant bail to the petitioner/accused. But under the erroneous impression that the offences under Sec.354-A (1)(i) and 506 IPC are only attracted, the learned VII Additional Chief Metropolitan Magistrate, Hyderabad granted bail to the petitioner/accused. However, the learned 1st Additional Metropolitan Sessions Judge, Hyderabad upon considering the entire facts mentioned in the First Information Report, arrived at a conclusion that the offence under Section 354 IPC is made out and therefore, took the view that having regard to the facts and circumstances of the case, the petitioner/accused is not entitled for bail and accordingly cancelled the bail granted to the petitioner/accused by the learned VII Additional Chief Metropolitan Magistrate, Hyderabad.
In view of the cancellation of bail, the petitioner/accused, however, can move this Court seeking anticipatory bail under Sec.438 Cr.P.C. But this Court has to consider while dealing with the said application as to whether the learned 1st Additional Metropolitan Sessions Judge, Hyderabad is justified in canceling the bail and whether the petitioner/accused is entitled for anticipatory bail, having regard to the facts and circumstances of the case.
The offence alleged is of serious in nature and the facts would clearly disclose that the petitioner being Correspondent and Principal of Vikasa Bharathi High School, outraged the modesty of the de facto complainant, a girl student, aged 14 years who was studying 9th class in the said school. The First Information Report further discloses that the petitioner/accused principal has been resorting to outraging the modesty of the de facto complainant girl even prior to the alleged date of incident in this case by putting his hands on her chest and other parts of body and also threatened her not to reveal his behaviour to anybody. Therefore, from the facts of the cases, the bail granted by the learned VII Additional Chief Metropolitan Magistrate, Hyderabad was rightly cancelled by the learned 1st Additional Metropolitan Sessions Judge, Hyderabad and I am of the view that the petitioner/accused in a case of this nature is not entitled for anticipatory bail.
For the reasons, stated supra, the Criminal Petition is dismissed. _____________________ R.KANTHA RAO,J Date: 03.12.2013