Telangana High Court
The State Of Telangana vs Kompally Lingam Goud on 28 June, 2023
Author: M. Laxman
Bench: M. Laxman
THE HONOURABLE SRI JUSTICE M. LAXMAN
CRIMINAL PETITION No.4829 of 2023
ORDER:
1. The present Criminal Petition is filed by the State seeking cancellation of anticipatory bail under Section 439 (2) of Code of Criminal Procedure (for short 'Cr.P.C'), which was granted by the Court of the Special Judge for trial of cases under Protection of Children from Sexual Offences Act-cum-I Additional Sessions Judge, Warangal (hereinafter referred to as 'Court below'), in Crl.M.P.No.122 of 2022 in Crime No.67 of 2022 of Kakatiya University Police Station, Warangal District. The respondent herein is the sole accused in said crime.
2. The case of the prosecution is that initially complaint was filed by the mother of the victim alleging outraging of modesty of the victim and it appears that application seeking anticipatory bail was moved before the Court below by the accused. The Court below basing on the material available appears to have granted anticipatory bail to the accused. The subsequent investigation found that there is grievous offence allegedly committed by the accused and that is made out from the 164 Cr.P.C statement of the victim. It appears that the defacto complainant also filed application seeking cancellation of anticipatory bail which was granted on 10.03.2022 and the said application was dismissed by this Court. However, the prosecution arrested the accused in the light of grievous offence which was charged under Section 376 of the Indian Penal Code, 1870. In pursuant of such arrest, the accused was produced before the concerned Court for judicial custody and on such production, the concerned Court has not accepted the judicial remand and he was set liberty. Thereafter, the present application is filed by the State seeking cancellation of anticipatory bail on the ground that grievous offence is made out, which was not there when the anticipatory bail was granted.
3. Heard both sides.
4. It is contended by the learned Additional Public Prosecutor that the arrest and remand of the accused was not accepted by the concerned Court on account of existence of anticipatory bail granted by the Court below. According to him, there are serious allegations of commission of rape and when such allegations are there, which were not there when the anticipatory bail is granted, the accused cannot be benefited with the anticipatory bail and shall be allowed to arrest. According to him, unless the present anticipatory bail is cancelled, it is not possible to arrest and remand the accused for the grievous offence.
5. On the contrary, learned counsel for the respondent/accused submitted that the Court below initially granted anticipatory bail in the light of the material which was available on record and attempt was made for cancellation of such bail at the instance of the mother of the victim. According to him, the grievous charge is added as subsequent development after grant of bail. However, such a material was in fact available for consideration when the original bail application was filed before the Court below. It is also contended that this Court has already rejected the attempt made by the defacto complainant for cancellation of bail. The present application is misconception and the same is liable to be dismissed.
6. Without going into the details of the dispute between the parties and merits of the case, it is apt to refer to the judgment passed by Apex Court in the case of Pradeep Ram vs. The State of Jharkhand1, wherein the Hon'ble Supreme Court categorically held that if any grievous charge is added subsequent to grant of bail, the only recourse is to make application under Sections 437 (5) and 439 (2) to the Court which granted the bail placing the material which support grievous offence, which is added subsequently. The Court below on making such an application, after considering the material which are placed 1 (2019) 17 SCC 326 before it may grant or reject the bail taking into account the requests made by the investigating agency. In order to obtain such order, there is no need to cancel the bail which is granted earlier.
7. In the said circumstances, the dismissal of application made for cancellation of bail shall not come in way of the prosecution to make appropriate application under Sections 437 (5) and 439 (2) of the Cr.P.C before the Court below, which granted anticipatory bail to the accused/respondent placing all the material. When, such an application is made, the Court below without any influence from the orders passed by this Court rejecting the cancellation of bail and also observations if any made by this Court herein shall dispose of such an application considering the material which the prosecution collected subsequent to the grant of bail after hearing both sides.
8. With the above order, this Criminal Petition is disposed of. No order as to costs. Miscellaneous petitions, if any, pending shall stand closed.
______________________ JUSTICE M. LAXMAN Date: 28.06.2023.
GVR