Dr. B. Siva Sankara Rao, J. - (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. Coming to the factual matrix, undisputedly the bail application is not moved by A -1, but for through the so -called GPA -cum -father of A -1, and leave about he filed his Vakalath. It is to say, admittedly he was not in India, much less, stated when would he can come over to avail the concession of bail even in its granting bail. From the above, coming to the core of the contentions of the de facto complainant in seeking cancellation of the bail, the learned counsel placed reliance upon the two expressions, one of the Kerala High Court and the other of the Madras High Court, in his saying the very granting of anticipatory bail is not sustainable within four corners of Section 438 Cr.P.C. and thereby and also for the reason, there is nothing to show from the reading of the bail application averments and bail order of when would probablise he could come to India and how he could stay in India to face the trial and these were not adverted to, much less taken into consideration in granting the bail by the lower Court, thereby the impugned order is not sustainable and hence, it requires cancellation of the bail. Before coming to discuss the two propositions referred by the de facto complainant, it is the rival contention of the learned counsel for the 2nd respondent -accused of the bail cancellation application for there is N.B.W. pending even from the above referred bail order and pending N.B.W., the anticipatory bail is granted and the warrant cancellation application filed by him, though he is unable to give the number for not obtained certified copy, was even ended in dismissal, thereby he could not come over to India to avail the concession of bail and that he filed a revision against the dismissal of the warrant and it is pending. There is nothing to say any interim orders suspending the N.B.W. concerned. It is important to say that, he is well conscious of the factum of N.B.W. is even pending against him by the time of his filing the anticipatory bail application at the post cognizance stage and also in submitting the argument referring to the Full Bench expression is Smt. Sheik Khasim Bi referred supra of anticipatory bail can be granted even N.B.W., pending that was issued at post cognizance stage and was considered by the learned Sessions Judge.
(3.) BEFORE discussing further, it is import to refer Session 438 Cr.P.C, which reads as follows: "438. Direction for grant of hail to person apprehending arrest: - -(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non -bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that Court may, if it thinks fit, direct that in the even of such arrest, he shall be released on bail; and the Court may, after taking into consideration, inter alia, the following factors, namely: (i) The nature and gravity of the accusation. (ii) The antecedents of the applicant including the fact as to whether he 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; and (iv) Where the accusation has been made with the object of injuring or either reject the application by having so arrested, Either reject the application forthwith or issue an interim order for the grant of anticipatory bail. Provided that, where the High Court or, as the case may be, the Court of Sessions, has not passed any interim order under this sub -section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in -charge of a police station to arrest, without warrant the applicant on the basis of accusation apprehended in such application. (1A) Where the Court grants an interim order under sub -section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction under sub -section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including - (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. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of attest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub -section (1).";