DATLA ASHWINI SWETHA Vs. STATE OF A P

JUDGEMENT

(1.) THIS Criminal Petition is filed under Section 439(2) read with 482 Cr.P.C. by the petitioner -de facto complainant in Crime No. 45 of 2013 of Women Police Station, Vizianagaram District registered for the offence punishable under Section 498 -A IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short, 'the Act'). Heard the learned counsel for the petitioner, learned Additional Public Prosecutor for the Respondent -State, learned counsel for Respondent No. 2 and perused the material placed on record.

(2.) THIS is an application for cancellation of anticipatory bail order granted in favour of the 2nd respondent -A -1 among 15 accused based on the complaint of the petitioner -de facto complainant, no other than the wife of A -1, dated 18 -5 -2013 of the crime registered for the offence punishable under Section 498 -A IPC and Sections 3 and 4of the Act; as can be seen from the record, the police after investigation filed chargesheet that was taken cognizance by the Court. This application is filed seeking cancellation of the bail order, passed by the learned Judge, Family Court -cum -III Additional District and Sessions Judge, Vizianagaram, dated 15 -7 -2014, in favour of the husband of the de facto complainant -A -1 in Crl.M.P. No. 276 of 2014. Operative portion of the order at para 11 speaks that the petition is allowed granting anticipatory bail by directing the petitioner -A -1 to surrender before the Additional Judicial Magistrate of First Class, Vizianagaram and on his surrender, the learned Magistrate shall release the petitioner on bail on his execution of personal bond for Rs. 20,000/ - with two sureties, for a like sum each to the satisfaction of the learned Additional Judicial Magistrate of First Class, Vizianagaram. The bail order is running in seven pages in eleven paras, reflecting the contentions and rival contentions of the propensity of the crime, role of A -1, leave about the other accused i.e., A -2 to A -15 and in formulating the point as entitlement of anticipatory bail by A -1 concerned, it is answered that as per the judgment of the Bombay High Court in Akhalaq Ahmed F. Patel v. State of Maharashtra : 1998 Crl.L.J. 3969, where the petitioner -accused seeking anticipatory bail is in Government Service. there is no question of apprehension of absconding and at the late stage, considering the bail from the date of report in registering the crime, it is hardly be said that the accused is likely to tamper with the evidence or interfere with the witnesses, thereby held deserves to grant anticipatory bail and the other expression referred is Smt. Sheik Khasim Bi v. The State : AIR 1986 A.P. 345, wherein it was held that 'the filing of a chargesheet by the police and issuing of a warrant by the Magistrate do not put an end to the power to grant bail under Section 438(1) Cr.P.C. and on the other hand, the High Court or the Court of Sessions got power to grant anticipatory bail to a person even after the criminal court has taken cognizance of the offence and issued process i.e., warrant of arrest to the accused; therefore, the Division Bench expression in Kamalakara Rao's case : (1983 (1) APLJ 97) : 1983 Crl.L.J. 872 (supra), upholding the view of, 1975 (2) APLJ (HC) 213 in N. Sasaratha Reddy's expression and another view of Crl.M.P. No. 884 of 1981 does not lay down the correct legal position in overruling the said expressions to that extent. The sum and substance of the two expressions, the learned Sessions Judge in granting anticipatory bail to the petitioner, who is a citizen of Austrial claimed as Government Service and for the very moving of bail application by the General Power of Attorney (GPA) holder -cum -father of A -1, held that as the petitioner is in Government Service and observed not going to abscond and the other observation is that even after chargesheet filed and taken cognizance by the learned Magistrate and even issued N.B.W. for securing presence of the accused shown in absconding, that is not bar to maintain anticipatory bail. In fact, that expression in Smt. Sheik Khasmi Bi referred supra of this High Court is the Full Bench expression. The Full Bench did not even alter the Division Bench's expression in Kamalakara Rao supra of anticipatory bail can even directly moved before the High Court without knocking the doors of the Court of Sessions but for saying the following earlier two single judge's expressions was not right in view of anticipatory bail cannot be granted at post cognizance stage. Once chargesheet filed and cognizance taken and N.B.W. issued, it is there from the learned Sessions Judge in para 10 of the bail order before referring to para 11 conditions detailed supra observed that the police filed chargesheet including against the petitioner/A -1 that was taken cognizance and from showing in the chargesheet as A -1 is in Ascendance, N.B.W. was issued against A -1 on 17 -4 -2014 and the cognizance taken is for the offence punishable under Section 498 -A and Sections 3 and 4 of the Act and almost all witnesses are interrelated and the question of tampering the evidence of witnesses does not arise and for all these circumstances even if the petitioner apprehended by police, no purpose would be served and in view of the above and by referring the two expressions supra, fell just and proper to grant the pre -arrest bail in the even of arrest of the accused. It is before saying anything regarding the merits of the said observation referring to the two expressions detailed supra needful to discuss the facts.

(3.) BEFORE discussing further, it is import to refer Session 438 Cr.P.C, which reads as follows: