Telangana High Court
Khumbam Shivakumar Reddy vs The State Of Telangana on 9 December, 2022
Author: Chillakur Sumalatha
Bench: Chillakur Sumalatha
HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
CRIMINAL PETITION No.8493 of 2022
ORDER:
1. Seeking pre-arrest bail, the petitioner, who is arrayed as accused in Crime No.209 of 2022 of Panjagutta Police Station, is before this Court.
2. Heard Sri R.K.Chitta, learned counsel for the petitioner, learned Additional Public Prosecutor who is representing Respondent No.1 as well as Sri Karam Chandu Komireddy, learned counsel appearing for the 2nd respondent/de facto complainant.
3. A case was registered against the petitioner basing on the complaint given by the 2nd respondent that he committed offences punishable under Sections 417, 420, 376 and 506 IPC. Projecting that he is innocent and a false case is foisted against him and also contending that his arrest, therefore, would be illegal, the petitioner sought for grant of anticipatory bail.
4. The matrix of the case as could be perceived through the contents of the complaint are that, the petitioner is the District Congress Committee President and the 2nd respondent/de facto complainant is the Member of Indian 2 Dr.CSL,J Crl.P.No.8493 of 2022 National Congress Party. The 2nd respondent was deputed to campaign and coordinate the Municipal Elections in the year 2020 and she was allotted Narayanpet region and therefore, she went there. There, she met the petitioner. Both of them discussed the campaign strategies for the ongoing elections. The 2nd respondent (hereinafter be referred as the 'de facto complainant') was given accommodation at the house of the petitioner. During that time, the petitioner tried to establish close relationship with the de facto complainant. He expressed an intention to marry the de facto complainant. When the de facto complainant questioned the petitioner about his existing marriage, he replied that his wife is critically ill and would not be surviving beyond three years and therefore, he needs a woman who would take care of him. The de facto complainant requested time to ponder over the proposal.
5. During that time, she heard a rumor about the ongoing affair of the petitioner with another woman. When questioned, the petitioner denied the same. Later, the de facto complainant again heard the same rumor. When questioned, the petitioner took the de facto complainant to 3 Dr.CSL,J Crl.P.No.8493 of 2022 the house of the said woman and informed that the said woman is like his sister.
6. On completion of elections, the de facto complainant returned Hyderabad. The petitioner continued calling and chatting with the de facto complainant. Though his number was blocked, the petitioner, through his followers, started convincing her. In the month of September, 2020, the petitioner asked the de facto complainant to come out with him. Unable to withstand his pressure, she accepted his invitation and therefore, he took her to Novatel Hotel, Shamshabad for dinner. There, he assured that he would help her to get a ticket for contesting in the GHMC Elections, Hyderabad. The de facto complainant requested the petitioner to speak to her father about the marriage and he assured to do so. During Dubbaka Bye elections, the petitioner proposed the de facto complainant to stay with him at one room and she agreed thinking that it would be easy for her to make him call her father and convince him for her marriage. However, on one night, the petitioner drank heavily and started pressuring the de facto complainant to have intercourse with him. When she 4 Dr.CSL,J Crl.P.No.8493 of 2022 refused, he pulled her by her hair and banged her head to the wall with force. The de facto complainant begged the petitioner repeatedly to leave her and finally he left her. She spent entire night crying. As soon as he woke up, he pretended as if he was repenting and pleaded excuse. After completing the campaign, they returned to Hyderabad. Unable to bear the torture, the de facto complainant blocked all his numbers on her mobile. She did not speak with the petitioner for the next three months. However, the petitioner's followers kept on calling her and enquired her whereabouts.
7. On 17.02.2021, the de facto complainant came to know that the petitioner was in depression and is drinking heavily after she stopped talking with him. Therefore, she called him. The petitioner spoke to her in a loving manner and pleaded to resume relationship. He assured that he would not see any other woman except the de facto complainant. Convinced with the same, she agreed. Later, she came to know that the petitioner went on vacation to Puducherry with two women. The petitioner took the de facto complainant to Bengaluru stating that 5 Dr.CSL,J Crl.P.No.8493 of 2022 they cannot talk freely at Hyderabad without being noticed. They stayed at Bengaluru for a couple of days. There, the petitioner left her in a hotel and went to a Bar and continued drinking late night. When she called him and requested him to come and talk, he came and thrashed her hard and stabbed her hand with a fork and broke her phone. After coming back to Hyderabad, he went on vacation to Coorg with another woman. He deputed his followers to smoothen the things. Therefore, the 2nd respondent again started taking with the petitioner. The petitioner took her to Marriot Hotel and there, he pressurized her to have sex. She refused his proposal stating that she would engage in sex only if he marries her. On that, he took an yellow thread and tied and the very next moment, he took away the same stating that he would any how marry her in a grand way. Next day, they went to Bengaluru. There, the petitioner drank heavily and tried to have intercourse with her. She resisted. But the petitioner took off his clothes and ripped her clothes and ravished her again and again. She cried for the entire night. They returned to Hyderabad. Thereafter, she stopped talking 6 Dr.CSL,J Crl.P.No.8493 of 2022 with the petitioner. However, on 19.08.2021, the petitioner called her and requested her to come to Hotel Golconda to discuss about their relationship and he also invited their common friend to be present in the discussion. While they were discussing, the petitioner suddenly got angry and assaulted her. The employees of the hotel intervened. Again, the petitioner called the de facto complainant to Grand Kakatiya for discussion. But she refused to go. The petitioner begged to come and assured that he would be behave politely. Therefore, she obliged his request and went there. There, he mixed some pills in the soft drink and made her drink. When she fell unconscious, he removed her clothes and had sex with her and captured her naked pictures on his mobile and after she got consciousness, he informed that he has taken her naked pictures and would post them in the Internet if she would not heed to his demands. Feeling of her reputation, she started dancing to his tunes. As usual, he cheated her. In the month of September, he left to Bengaluru. The de facto complainant followed him and found that he was at ITC Hotel, Bengaluru. As soon as the petitioner saw her, he 7 Dr.CSL,J Crl.P.No.8493 of 2022 closed the door and informed the security to send her off. She waited in the lobby till 3.00 p.m. and caught the petitioner. Thereafter, both of them returned to Hyderabad. When she confronted his behaviour and informed him that she would do a dharna in his constituency, the petitioner threatened her with a gun and warned her that he would kill her. From the month of October 2021, the petitioner started ignoring her again. On the advise of his Pandit, he took her to Varanasi for performing some rituals. Upon returning to Hyderabad, he started ignoring her. When she started to contact him, the petitioner and his followers threatened to kill her.
8. Making his submission, learned counsel for the petitioner contended that the registration of the case against the petitioner is a politically motivated one. Learned counsel states that only to harass and blackmail the petitioner, the de facto complainant gave a false complaint to police. Learned counsel also stated that as per own version of the de facto complainant, she repeatedly met and followed the petitioner to various places at various times, which itself goes to show that there was consensus 8 Dr.CSL,J Crl.P.No.8493 of 2022 between the parties for maintaining the relationship. Learned counsel also stated that the allegations are omnibus and there are no specific and particular instances given in the complaint. Learned counsel also submits that the petitioner, even as per the contents of the complaint, never promised to marry the de facto complainant and therefore, Sections 417 and 420 IPC does not attract. Learned counsel further submits that in case the de facto complainant was not interested to contact or accompany the petitioner, she would not have stayed with the petitioner during the time of Dubbaka Bye elections or accompany the petitioner to Novatel Hotel, Shamshabad, to Bengalure twice, Marriot Hotel, Hyderabad, Hotel Golkonda, Hyderabad and Hotel Grand Kakatiya, Hyderabad. Learned counsel further submits that the registration of the case against the petitioner itself is illegal and therefore, undertaking investigation is ex-facie not valid. Learned counsel also submits that before registration of the case, the concerned police ought to have at least taken care to verify the genuineness in the contents of the complaint, but they did not do so. Learned counsel also 9 Dr.CSL,J Crl.P.No.8493 of 2022 states that the registration of the case against the petitioner, who holds substantial position and value in the society, has caused serious prejudice to him and his political life. Learned counsel also submits that in case the petitioner is arrested arbitrarily, illegally, malafidely and unlawfully, his right guaranteed under Section 21 of the constitution, would be violated and therefore, the petitioner is before this Court seeking anticipatory bail.
9. Learned counsel, during the course of his submission, stated that the petitioner is a law abiding citizen and no useful purpose would be served even if the petitioner is arrested. Learned counsel further states that the arrest of the petitioner would only deprive his right to life and personal liberty guaranteed under the constitution. Learned counsel also states that though the case was registered in the month of May 2022, no supporting material is collected by the investigating agency till now and no incriminating material is found which itself goes to show that the allegations levelled against the petitioner are false and the contents of the complaint are directed only to tarnish the image of the petitioner.
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Dr.CSL,J Crl.P.No.8493 of 2022
10. Contending that in the light of Article 21 of the Constitution of India, the facility given under Section 438 Cr.P.C. has to be granted liberally, learned counsel for the petitioner relied upon the decision of the Hon'ble Apex Court in the case between SHRI GURBAKSH SINGH SIBBIA AND OTHERS Vs. STATE OF PUNJAB1 wherein the Court at Para 7 of the order held as follows:-
"7. The facility which Section 438 affords is generally referred to as 'anticipatory bail', an expression which was used by the Law Commission in its 41st report. Neither the section nor its marginal note so describes it but, the expression 'anticipatory bail' is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton's LAW LEXICON, is to 'set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the 1 (1980) 2 Supreme Court Cases 565 11 Dr.CSL,J Crl.P.No.8493 of 2022 accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre- arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". A direction under Section 438 is intended to confer conditional immunity from this 'touch' or confinement."
11. On the same aspect, learned counsel also relied upon the decision of the Apex Court in the case between SIDDHARAM SATLINGAPPA MHETRE VS. STATE OF 12 Dr.CSL,J Crl.P.No.8493 of 2022 MAHARASHTRA AND OTHERS2 wherein discussing about the ill effects of arrest, the Court at Paras 87 to 90 of the order, held as follows:-
"87. The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
88. The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
89. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where 2 (2011) 1 Supreme Court Cases 694 13 Dr.CSL,J Crl.P.No.8493 of 2022 the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.
90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post- conviction stage.
12. Also stating that when there is consent of the woman for sexual intercourse, the same would not fall within the ambit of Section 375 IPC, learned counsel relied upon the decision of the Hon'ble Apex Court in the case between Pramod Surya Bhan Pawar Vs.State of Maharashtra3 wherein their Lordships at Para 18 of the order held as follows:-
"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The 3 (2019) 9 SCC 608 14 Dr.CSL,J Crl.P.No.8493 of 2022 promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance or bear a direct nexus to the woman's decision to engage in the sexual act."
13. Also contending that where there is long standing relationship established, the case will not fall within the ambit of Sections 375 and 376 IPC, learned counsel relied upon the decision of the Hon'ble Apex Court in Ansaar Mohammad Vs.State of Rajasthan and Another4. Finally, learned counsel for the petitioner contends that the petitioner has not committed any offence whatsoever and no useful purpose would be served in arresting the petitioner who hails from a respectable family and having political background and therefore, he is entitled for anticipatory bail.
14. Opposing the relief sought for, learned Additional Public Prosecutor made his submission contending that the petitioner filed an application vide Crl.M.P.No.3656 of 2022 before the Court of Metropolitan Sessions Judge, 4 2022 SCC Online SC 886 15 Dr.CSL,J Crl.P.No.8493 of 2022 Nampally, Hyderabad, for grant of anticipatory bail and in the said application, all the pleas that were taken now, were taken and considering those pleas to be unsustainable, the Sessions Court refused to grant anticipatory bail and therefore, basing on the same pleas, the petitioner is not entitled for anticipatory bail. Learned Additional Public Prosecutor further submitted that while opposing the said Crl.M.P.No.3656 of 2022, the State filed counter and the grounds urged opposing the relief sought for in the counter may be taken into consideration.
15. A perusal of the contents of the said counter reveals that the State opposed the application mainly on the ground that the petitioner is evading police and is not cooperating with the investigation process. Secondly that in case he is enlarged on bail, it would be difficult to ensure his presence in further process. Thirdly, he may induce the victims/witnesses and tamper the process of investigation. Fourthly, that the petitioner is having money and political power and it may lead to threat to the life of the victim. Fifthly, the pettioner may fly abroad to avoid the legal process. Finally, in the light of heinous offence 16 Dr.CSL,J Crl.P.No.8493 of 2022 which he had committed towards the victim woman, he is not entitled for anticipatory bail.
16. The de facto complainant, who is arrayed as 2nd respondent, filed her counter strenuously opposing the relief sought for and contended that the petitioner is not entitled for anticipatory bail. In the counter filed, she stated that the petitioner is a powerful politician and though the case was registered in the month of May 2022, he successfully avoided arrest for more than 4 ½ months. She also contended that the investigation is in progress. She further stated that the petitioner has got a fire arm with silencer and he threatened her with the said fire arm. She also stated that her statement was recorded under Section 164 Cr.P.C. and she narrated all the facts related to the offence in the said statement. She further stated that she is having threat to her life and grant of anticipatory bail may cause irreparable loss and injury to her and it will also hamper the investigation.
17. Making his submission, learned counsel for the 2nd respondent/de facto complainant contended that after 17 Dr.CSL,J Crl.P.No.8493 of 2022 registration of the case, the petitioner started threatening the de facto complainant to withdraw the case. Learned counsel submitted that the de facto complainant, unable to bear such threatening being made by the petitioner through his supporters, gave complaint to police. Learned counsel stated that though the de facto complainant gave complaint to police that she is receiving threatening calls repeatedly to kill her and to publish all her private pictures on various platforms of social media, no action was taken by police and at least, a case was not registered. Learned counsel submits that the de facto complainant filed a Writ Petition thereafter vide W.P.No.42432 of 2022 before this Court and after filing of the said Writ Petition, police registered a case basing on the complaint given by the de facto complainant which itself goes to show that having considered the political position of the petitioner, even the police are supporting the petitioner. Learned counsel submits that finally, a case was registered as a case in Crime No.490 of 2022 of O.U. City Police Station, Hyderabad, but no investigation is being carried out in the said case. Learned counsel also submitted that though it 18 Dr.CSL,J Crl.P.No.8493 of 2022 is clearly narrated that the petitioner captured the nude photographs of the de facto complainant and started threatening that those photographs would be published in the social media, at least the cell phone of the petitioner is not seized by police till now. Learned counsel for the de facto complainant also submitted that though the petitioner in the complaint and while giving statement under Section 164 Cr.P.C., contended that the petitioner holds a revolver with silencer and that there is threat to her life, atleast, police never gave any direction to the petitioner to surrender the said revolver till now, which itself shows that the life of the petitioner is at threat. Learned counsel further submits that Article 21 of the Constitution of India which guarantees life and liberty to the citizens should not only be applied to the accused to the case, but also to the victim woman and therefore, considering the same, the request of the petitioner for grant of anticipatory bail should be disallowed.
18. Also making submission that where heinous offences have been committed by the accused, that too against woman, the Court should not favour those accused by 19 Dr.CSL,J Crl.P.No.8493 of 2022 granting either bail or anticipatory bail, learned counsel for the 2nd respondent relied upon the decision of the Hon'ble Apex Court in SADHNA CHAUDHARY VS. THE STATE OF RAJASTHAN & ANR.5 On the same aspect, learned counsel also relied upon the decision of the Hon'ble Apex Court in X Vs. ARUN KUMAR C.K & ANR.6 wherein the Court held as under:-
"We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the High Court granting anticipatory bail to the accused should be quashed and set aside. In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then 5 Criminal Appeal No.936 of 2022 6 2022 Live Law (SC) 870 20 Dr.CSL,J Crl.P.No.8493 of 2022 that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail."
19. In the decision that is referred supra i.e. GURUBAKSH SINGH SIBBIA's case, a pertinent observation was made at Para 35 of the order which is as under:-
"35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has 21 Dr.CSL,J Crl.P.No.8493 of 2022 "reason to believe" that he may be arrested for a non- bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non- bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely."
20. To exercise power granted under Section 438 Cr.P.C. in favour of or against the applicant as per the said 22 Dr.CSL,J Crl.P.No.8493 of 2022 provision, the following facts have to be taken into consideration.
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
Apart from that, the Court should see that a balance has been struck between free and fair investigation and right and liberty of the accused.
Also, the apprehension of the victim of crime and whether there is any possibility of the victim of crime being subjected to further humiliation, harassment or injury should also be looked into.
21. In the case on hand, it is clearly brought to the notice of this Court that though an allegation is levelled through 23 Dr.CSL,J Crl.P.No.8493 of 2022 the complaint itself that the nude pictures of the de facto complainant were taken and she was threatened of posing the same in Internet, nothing is seized from the possession of the petitioner till now by police, atleast by issuing notice to the petitioner for production of those things. Though it is contended that a notice under Section 91 Cr.P.C. was issued to the petitioner, surprisingly, in the said notice, nothing is stated for production of any document or thing. That apart, though it is clearly narrated in the complaint that the petitioner threatened the de facto complainant to kill her with a gun and though it is contended and projected that the petitioner holds a revolver, it appears that even a request was not made to the petitioner to surrender the said weapon. The allegations levelled through the complaint are grave in nature. The de facto complainant in her Section 164 Cr.P.C. statement confirmed the allegations as narrated in the complaint and has submitted that the petitioner is a strong politician, that too at the helm of affairs. Therefore, this Court is inclined to accede to the submission of the learned counsel for the de facto complainant that the de facto complainant would 24 Dr.CSL,J Crl.P.No.8493 of 2022 not be in a position to safeguard herself and that the relevant witnesses would not be in a position to give statements in a free and fair manner in case the petitioner is granted with the relief of pre-arerst bail. Also, this Court is not inclined to accept the proposition of the learned counsel for the petitioner that pre-arrest bail is a constitutional right guaranteed under Section 21 of the Constitution of India. Though pre-arrest bail is a safeguard granted against arbitrary arrest under Section 438 Cr.P.C., it cannot be termed to be either a statutory right or constitutional right.
22. Having regard to the gravity of the allegations levelled, this Court is of the view that the extraordinary power granted which should be sensitively and diligently exercised, cannot be exercised to favour the petitioner herein.
23. Resultantly, the Criminal Petition is dismissed.
_______________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA Date:09.12.2022 ysk 25 Dr.CSL,J Crl.P.No.8493 of 2022 26 Dr.CSL,J Crl.P.No.8493 of 2022 HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA CRIMINAL PETITION No.8493 of 2022 Date:09.12.2022 ysk 27 Dr.CSL,J Crl.P.No.8493 of 2022