Allowed

Pullugura Nithin Dasu v. the State of Andhra Pradesh

Andhra Pradesh HC4 Mar 2021CRLRC/16/2021

Case brief

AI extract

What is this about?

Revision case challenging the cancellation of bail granted to accused in a POCSO matter. The High Court held that a fiancé's refusal to marry the victim is not a valid ground for bail cancellation. The impugned order was set aside, and bail restored subject to wingo and investigation cooperation.

What did the court decide?

Impugned order dated 07.01.2021 setting aside the bail order dated 04.11.2020 is set aside. Petitioners continue on bail with additional wingle conditions of weekly wingle to SHO and cooperation with

Pullugura Nithin Dasu Vs the State of Andhra… — Matrimonial and Divorce | Andhra Pradesh HC (2021)

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THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

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CRIMINAL REVISION CASE No.16 of 2021

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ORDER:-

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This Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) to set aside the order dated 07.01.2021 passed in Crl.M.P.No.1822 of 2020 in Crime No.195 of 2019 by the Special Court for speedy Trial of Offences under Protection of Children from Sexual Offences Act, Guntur wherein the petition filed by the complainant under Section 439(2) of Cr.P.C. was allowed cancelling bail granted to the petitioners and consequently to restore the said order.

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2. The brief facts of the case are:

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Crime No.195 of 2019 of Chilakaluripet Town Police Station was registered basing on a complaint given by the father of the victim girl alleging that petitioner No.1/accused No.1 trespassed into the house of the complainant in their absence and threatened to kill the victim girl if she does not listen and accompany him. It is also alleged that petitioner No.1 showed abusive pictures in his mobile and tried to ravish her. In the meantime the informant’s son came home and informed the same to the complainant. It is also the allegation of the complainant that petitioner No.3/accused No.3 abused the victim girl in filthy language and tried to attack the informant’s son.

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161 Cr.P.C. statement of the victim girl was recorded on 31.08.2019 wherein it is stated that on 11.07.2019 in the absence of her family members, while she was chitchatting with the petitioner in her house, her brother came and on seeing her brother, the petitioner went away. Immediately her brother informed the same to the parents. They returned to the house and

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questioned the girl. Out of fear she informed her parents that he threatened her with knife to marry her and she refused. Then her parents placed the matter before the elders and the matter was compromise. The victim girl was engaged with A1. Later on 04.11.2020 bail was granted to the petitioners as the case was referred as false and the submission of the learned Special Public Prosecutor was recorded wherein he stated that the victim girl is aged about 17 years and so far 14 witnesses were examined, and 164 Cr.P.C. statements of the victim girl and the complainant have been recorded and case was referred as false as the witnesses compromised.

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Subsequently A1 to A3 have been contending that A1 would not marry the victim girl. Therefore, 164 Cr.P.C. statement of the victim girl was recorded wherein the version was improvised and it is stated that the petitioner tried to commit rape on her and also refused to marry her. After that they have approached the Police but they refused to reopen the case. Therefore, the complainant has come up with this present application wherein it is stated that A1 to A3 agreed to perform the marriage of the victim girl with A1 in the month of May, 2020 and the complainant agreed to give Rs.5,00,000/- and other gold articles towards dowry. It is also alleged in the petition that A1 used to call and chit chat with the victim girl on whatsapp. Later the petitioners demanded to give land to an extent of Ac.2-00 as additional dowry and as it was not agreed the accused refused to perform the marriage of the victim girl with A1. The same was informed to the Police but the Police failed to take action. The only ground to seek cancellation of bail is that A1 has refused to marry the victim girl and he is spreading rumors against the victim girl.

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The Court below after taking into consideration the contentions raised on both sides the Court below held that there is prima facie material to show that petitioner No.1 attempted to ravish the victim girl and similarly there is sufficient material to show that the petitioners have been threatening to kill the family members of the complainant if they approach the police. It was also held that the petitioners have not been cooperating with the investigating agency and therefore, the bail was cancelled. Aggrieved by the same the petitioners are before this Court.

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Heard Sri G.L.V. Ramana Murthy, learned counsel for the petitioners, learned Additional Public Prosecutor for respondent Nos.1 and 2 and Sri K.Jyothi Prasad, learned counsel for respondent No.3.

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Learned counsel for the petitioners submits that the investigation was concluded and when once the investigation is closed the question of further investigation does not arise except filing final report under Section 158 of Cr.P.C. In this case since delay occurred in filing the final report, the complainant came up with the said petition. The reason that A1 is not accepting for marriage cannot be a ground for seeking cancellation of bail. Moreover there is change of version of the victim girl and the complainant as stated in the complaint differs from their statements recorded under Section 164 Cr.P.C. Learned counsel for the petitioners relied upon a decision reported in N.Jaya Kumar vs. Kandali Srinivasulu Reddy¹ wherein it is held as under:

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“15. Even from the above expression, the cancellation of bail is not confined to just grant of concession from conduct of accused but also from perusal of the circumstances,

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1 2014 (2) ALD (Cri) 947

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facts referred in the bail order, wherein it is found even necessary facts not brought to its notice either by suppression or by non-disclosure inadvertently or intentionally or even not reflecting the necessary facts in the order granting bail, though even born by record.

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From the above propositions and referring to the facts, it is now to consider whether the present matrix justify cancellation of bail or imposition of any necessary and reasonable conditions to the existing order by its modification. In this regard nothing could be brought to the notice of the Court in the elaborate arguments of both sides heard at length of intentional suppression or nondisclosure of the known facts in getting the concession of granting bail.

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Therefore, though there is a cause in cancellation of bail, Court is not entitled generally to go into the in-depth merits of the factual matrix. The basis in this case is the suicidal note and whether it attracts Section 306 IPC read with 109 IPC or not is to be dealt with only after completion of trial and hearing arguments advanced by both sides.

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From the above, even it disclosed that otherwise the petitioners are entitled to regular bail, even the bail order can be cancelled as per the expression in Siddharam Satlingappa Mhetres case, it is clearly observed that it makes no difference between anticipatory bail or regular bail which are once granted, as the liberty shall continue till cancellation and the parameters laid down under Section 437 Cr.P.C. equally applies to, as per the provisions of Section 438 Cr.P.C. besides the requirements which satisfy Section 438(1) four clauses and the conditions to be imposed covered by Section 438(2) Cr.P.C.

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Having regard to the above, instead of cancelling the anticipatory bail, in the factual matrix, ends of justice sub serves to impose conditions in addition to the conditions imposed in the anticipatory bail order, out of the power of the Court.”

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Learned counsel for respondents submits that since the victim girl is 17 years, the offences punishable under POCSO Act

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also attracted in this case. He further submits that since the parties compromised initially Police closed the investigation referring it as a false case. But subsequently as A1 refused to marry the victim girl again 164 Cr.P.C. statements of the victim girl and the complainant were recorded and further the accused are threatening the victim as such the Court below has considered these aspects and cancelled the bail.

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A perusal of the petition and order shows that the only ground sought for cancellation of the bail is that subsequent to closure of investigation petitioner No.1 refused to marry the victim girl and hence statements of the victim girl and the complainant were again recorded under Section 164 Cr.P.C. and petition for cancellation of bail was filed. The same cannot be a ground to seek cancellation of bail.

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While granting or canceling bail the Courts have to this Court has to take into consideration the following factors as

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held in Satlingappa Mhetre Vs. State of Maharashtra and Ors² :

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i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

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ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice;

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iv. The possibility of the accused's likelihood to repeat similar or the other offences.

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v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

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vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

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vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly

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2 AIR 2011 SC 312 = MANU/SC/1021/2010

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comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

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viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

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ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

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x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

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In the present case on hand the ground sought for cancellation of bail is that A1 refused to marry the victim girl. On this ground bail cannot be cancelled and such cancellation is pure abuse of law. At the most the prosecution can file application for cancellation of bail if the accused failed to comply the conditions, if any, imposed at the time of granting bail or if there is likelihood of the accused absconding, tampering with the evidence and influencing the witnesses.

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In view of the above discussion, this Court opines that ends of justice would be met by setting aside the order impugned however, by imposing certain conditions.

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Accordingly this criminal revision case is allowed setting aside the order dated 07.01.2021 passed in Crl.M.P.No.1822 of 2020 in Crime No.195 of 2019 by the Special Court for Speedy Trial of Offences under Protection of Children from Sexual Offences Act, Guntur and the petitioners shall continue on bail on the same

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bail bonds. The petitioners shall appear before the Station House Officer, Chilakaluripeta Town Police Station, Guntur, once in a week i.e. on Saturday between 10:00 A.M. to 12:00 noon till filing of the charge sheet and shall cooperate with the investigation.

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As a sequel, pending miscellaneous petitions, if any, shall stand closed.

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____________________________________ JUSTICE LALITHA KANNEGANTI

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Date :04.03.2021 IKN

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THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

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(Allowed)

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