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Andhra Pradesh High Court - Amravati

K.Anasuya vs State Of Andhra Pradesh on 18 December, 2019

Author: Cheekati Manavendranath Roy

Bench: Cheekati Manavendranath Roy

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                                                                CMR, J.
                                                  Crl. P.No.5754 of 2019




 HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

              Criminal Petition No.5754 of 2019

ORDER:

This petition is filed under Section 439(2) Cr.P.C. seeking cancellation of anticipatory bail granted to accused No.7 in Crl.M.P.No.276 of 2019 on the file of the VI Additional District and Sessions Judge, Krishna District, Machilipatnam.

The petitioner is the de facto complainant in Crime No.132 of 2019 of Koduru Police Station. On 08.08.2019 she has lodged a report with the Station House Officer, Koduru Police Station alleging that her father is the owner of the land covered by Survey No.689/2 of Koduru Village in an extent of Ac.0.29¾ cents as he got the said land in his family partition. Thereafter, her father constructed a shopping complex in the said land in the year 1969-70. Her father died in the year 1982 and her mother died in the year 1995. Thereafter, the de facto complainant has been in possession and enjoyment of the said property. She demolished the old construction in the said land in the month of April, 2019 to construct a new shopping complex.

At that time, she came to know that accused Nos.1 to 6, in collusion with accused No.8, who is the Sub-Registrar of Avanigadda, created registered gift deeds in respect of the said property. Accused No.1 executed a registered gift deed in favour of accused No.4, who is his second daughter. Accused No.2 executed a registered gift deed in favour of accused No.5. 2

CMR, J.

Accused No.3 executed a registered gift deed in favour of accused No.6 in respect of the said property.

When the de facto complainant and her husband went to the said land to supervise the construction on 08.08.2019 at about 3.00 P.M, accused Nos.1, 2, 4, 5 and 6 along with four unidentified persons armed with deadly weapons came to the land and abused the de facto complainant and her husband and threatened them to vacate the property and also threatened to kill them.

Therefore, on the basis of the said report lodged by the de facto complainant, the Station House Officer, Koduru Police Station, registered a case in Crime No.132 of 2019 for the offences punishable under Sections 420, 506 r/w. Sec.34 of I.P.C. and under Section 82 of the Registration Act against accused Nos.1 to 6 and 8.

Accused No.7 filed a petition under Section 438 Cr.P.C. for grant of anticipatory bail before the VI Additional Sessions Judge, Krishna at Machilipatnam, in Crl.M.P.No.276 of 2019. The said petition was allowed by the learned Additional Sessions Judge, by his order dated 27.08.2019, and granted anticipatory bail to accused No.7 on condition that he shall appear before the Sub-Inspector of Police, Koduru Police Station on every alternative day between 8.00 A.M. and 10.00 A.M. until further orders and also on condition that he shall make himself available for interrogation by the Investigating Officer as and when required.

CMR, J.

The petitioner, who is the de facto complainant, now seeks cancellation of the said anticipatory bail granted to accused No.7.

Heard learned counsel for the petitioner-de facto complainant and learned Additional Public Prosecutor for the 1st respondent-State.

Learned counsel for the petitioner-de facto complainant would submit that the learned Additional Sessions Judge erred in granting anticipatory bail to accused No.7. He would submit that the finding of the learned Additional Sessions Judge that the entire investigation is completed and that there is no necessity to keep accused No.7 in jail for further investigation is not correct and that the custodial interrogation of accused No.7 by the Investigating Officer is very much essential to elicit the truth relating to conspiracy hatched up among all the accused in this case and to establish the role of each and every accused played in the said conspiracy. He would further submit that the learned Additional Sessions Judge wrongly opined that the prosecution examined all the material witnesses. He also contends that the observation of the learned Additional Sessions Judge that it is not mentioned by the de facto complainant that accused No.7 was present at the scene of offence on 08.08.2019 at 3.00 P.M. is not correct and it shows the total non-application of mind of the learned Additional Sessions Judge to the facts of the case. He would submit 4 CMR, J.

that accused No.7 has issued a false and fabricated possession certificate to accused Nos.4 to 6 in respect of the disputed property and on the basis of the said fabricated possession certificate, accused No.8 has registered the gift deeds in respect of the aforesaid property without verifying the authenticity and veracity of the said possession certificate. So, he would submit that the order of the learned Additional Sessions Judge granting anticipatory bail to accused No.7 is devoid of any valid reasons and the said order granting anticipatory bail to accused No.7 is illegal and thereby prayed for cancellation of the anticipatory bail granted to accused No.7.

Learned Additional Public Prosecutor for the 1st respondent-State would submit that the allegation against accused No.7 is only relating to issuance of a false possession certificate. It is the prerogative of the Investigating Officer to decide whether any custodial interrogation of the said accused is essential or not in the facts and circumstances of the case. The de facto complainant cannot insist the police for any such custodial interrogation of accused No.7. He would further submit that the learned Additional Sessions Judge after considering the merits of the case, passed the order granting anticipatory bail to accused No.7. However, he would submit that the prosecution leaves the matter to be decided by this Court in the light of the submissions made by 5 CMR, J.

the learned counsel for the petitioner seeking cancellation of the anticipatory bail granted to accused No.7.

Thus, as can be seen from the contents of the petition filed by the de facto complainant seeking cancellation of the anticipatory bail granted to accused No.7 and also from the submissions made by the learned counsel for the petitioner, the de facto complainant is seeking cancellation of anticipatory bail granted to accused No.7 primarily on the two grounds that the arrest of accused No.7 is essential for his custodial interrogation by the Investigating Officer to elicit the truth relating to the conspiracy hatched up in the case and to establish the exact role played by each of the accused in pursuance of the said conspiracy and as such, the learned Additional Sessions Judge committed grave error in granting anticipatory bail to accused No.7. The other ground on which she sought cancellation of the anticipatory bail granted to accused No.7 is that the finding of the learned Additional Sessions Judge that the de facto complainant did not state in her report regarding the presence of accused No.7 on 08.08.2019 at 3.00 P.M. at the scene of offence is erroneous and it shows the non-application of mind of the Court in granting the anticipatory bail to accused No.7.

In the considered view of the Court, both the said grounds are not valid grounds for cancellation of the anticipatory bail that was granted to accused No.7. In this regard, it is relevant to consider the cardinal principles laid 6 CMR, J.

down by the Apex Court to be considered to cancel the bail that was already granted to the accused in a particular case. The Apex Court in the case of Abdul Basit @ Raju v. Mohd. Abdul Kadir Chaudhary1 held as follows:

"Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody i.e. the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation,

(iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive."

The Punjab and Haryana High Court in the case of Baldev Singh v. State of Punjab2 held that once the bail is granted, the same cannot be cancelled in a mechanical manner without considering as to whether any circumstances are there to show that he has misused the concession of bail or jumped the bail.

Therefore, the present petition filed seeking cancellation of anticipatory bail has to be considered on the touchstone of the parameters laid down by the Apex Court in the above cited judgment.

1 (2015) 1 SCC (Cri) 257 2 Order dated 03.08.2018 passed in Crl.M.P.No.M-45090 of 2017 of the Punjab & Haryana H.C. 7 CMR, J.

As can be seen from the contents of the petition filed by the de facto complainant seeking cancellation of bail and also from the submissions made by the learned counsel for the petitioner, as narrated supra, none of the aforesaid grounds enumerated in the judgment of the Apex Court laying down parameters for cancellation of bail that was granted to the accused are existing in this petition. It is not the case of the de facto complainant that accused No.7 has misused his liberty by indulging in similar criminal activity or interfered with the course of investigation or attempted to tamper with evidence or witnesses or threatened witnesses or indulged in similar activities which would hamper smooth investigation or that there is likelihood of his fleeing to another country or attempted to make himself scarce by going underground or becoming unavailable to the investigating agency or attempted to place himself beyond the reach of his surety, etc. Therefore, there are no valid legal grounds for cancellation of the anticipatory bail that was granted to accused No.7.

As regards the contention that the arrest of accused No.7 is essential for custodial interrogation by the Investigating Officer to elicit the truth relating to the conspiracy hatched-up by all the accused and to ascertain the role of each and every accused played in the said conspiracy, is concerned, it is for the Investigating Officer to state whether the custodial interrogation of accused No.7 is 8 CMR, J.

essential or not. The Investigating Officer did not come forward with any such request that since it is essential to interrogate accused No.7 to elicit the truth pertaining to the allegations made in the F.I.R. by the de facto complainant that his arrest and custody to the police is essential. Therefore, there is no merit in the said contention of the learned counsel for the petitioner that the bail has to be cancelled to enable the Investigating Officer to have custodial interrogation of accused No.7.

Similarly, the contention of the learned counsel for the petitioner that the observation of the learned Additional Sessions Judge that the material witnesses are examined in the case and that the presence of accused No.7 at the scene of offence was not established is erroneous and bail is liable to be cancelled on the said ground, cannot be countenanced. The learned Additional Sessions Judge after considering the facts and circumstances of the case, and merits of the same, by recording valid reasons in his order, granted anticipatory bail to accused No.7. He has held in his order that the presence of accused No.7 at the scene of offence on 08.08.2019 at 3.00 P.M. is not mentioned in the report of the de facto complainant. In fact it is not the case of the de facto complainant that accused No.7 was present on 08.08.2019 at the scene of offence. The only allegation against him is that he issued a false possession certificate. So, there is nothing wrong in arriving at the said finding.

CMR, J.

The learned Judge also found that the de facto complainant filed a civil suit in O.S.No.153 of 2019 against accused Nos.3 to 6 on the file of the Principal Junior Civil Judge, Avanigadda and in view of pendency of civil litigation and as major part of the investigation in the case has been completed that there is no necessity for custodial interrogation of accused No.7 and that as there is no likelihood of the accused absconding from justice, as he is a government servant. Therefore, he was inclined to grant anticipatory bail to accused No.7. This Court do not find any legal flaw or infirmity in the impugned order passed by the learned Additional Sessions Judge.

Therefore, the Criminal Petition fails as it is devoid of any legal grounds for cancellation of anticipatory bail that was granted to accused No.7 by the learned Additional Sessions Judge.

In the result, the Criminal Petition is dismissed.

________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:18.12.2019.

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