Andhra Pradesh High Court - Amravati
Suvvada Ravi Sekhar vs The State Of Andhra Pradesh on 10 February, 2021
Bench: Lalitha Kanneganti
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVA bt.
WEDNESDAY, THE TENTH DAY OF FEBRUARY, |
TWO THOUSAND AND TWENTY offe
:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO: 334 OF 2021,
Between:
Sri Suvvada Ravi Sekhar, S/o S. Satyam Naidu, Aged about 57 years, R/o
Boddapeta, Valluru, Nellimaria, Vizianagaram, Andhra Pradesh.
Petitioner/Accused No. 4
AND
1. The State Of Andhra Pradesh, Represented by S.H.O. Nellimarla P.S,
Vizianagaram District, Rep. Through the Public Prosecutor, State of Andhra .
Pradesh, High Court of Andhra Pradesh at Amaravati.
2. The State of Andhra Pradesh, Represented by S.H.O. Vizianagaram Rural P.S.,
Vizianagaram District, Rep. Through the Public Prosecutor, State of Andhra
Pradesh, High Court of Andhra Pradesh at Amaravaiti.
Respondents/Complainant
f
Petition under Section 487 8 439 of Cr.P.C, praying that in the circumstances
stated in the affidavit filed in support of the Criminal Petition, the High Court may be
pleased to enlarge the Petitioner on bail in FIR.No.01/2021 dated 02.01.2021 on the file
of Nellimarla P.S., Vizianagaram District, Andhra Pradesh
The petition coming on for hearing, upon perusing the Petition and the affidavit
filed in support thereof and upon hearing the arguments of Sri N. Ashwaf' Kumar,
Advocate for the Petitioner and of the pubie Prosecutor, High Court of AP, for the
Respondents and the Court made the following:
ORDER
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO.334 of 2021
ORDER:-
This criminal petition is filed under Sections 437 and 439 of
Code of the Criminal Procedure, 1973 (for short 'Cr.P.C.')) seeking
regular bail to the petitioner/A-4 in connection with Crime No.1 of
9021 of Nellimarla Police Station, Vizianagaram District, wherein
the petitioner is alleged to have committed the offences punishable
under Sections 307, 326, 427, 503, 506, 323, 120B r/w 34 of
Indian Penal Code,1860 (for short "IPC") and Section 3 of the
Prevention of Damage to Public Property Act, 1984 (for short
"PDPP Act").
2. A report was lodged on 02.01.2021 by V.Vijay Sai Reddy,
Member of Parliament stating that as he was informed about
demolition of idols at Ramatheertham temple, he has decided to
visit the temple in order to express deepest concern against the
malicious incident that had taken place. He informed the local
authorities regarding his visit to the temple and all of them
gathered peacefully down the hill. During the course of his visit,
the people who are politically motivated ganged up and attacked
him with stones, sharp objects and water bottles with an intent to
kill him. The activists of YSRCP and others present around
protected him along with police force. In the incident, his
bodyguard also sustained injuries from the assault launched by
Kala Venkata Rao and his henchmen as per the directions of
N.Chandrababu Naidu and K,Atchennaidu.
3. It is specifically stated that these activities have taken place
under the directions of N.Chandrababu Naidu and K.Atchennaidu
and under the supervision of Kala Venkatarao, who is physically
present, who instigated the mob to create law and order issues at
Ramatheertam temple and also with a criminal intention to kill
him. These incidents created horrific situations at the scene and
also damaged the bullet proof vehicle and other Government
vehicles. The stones thrown by Kala Venkatarao and his followers
damaged the glass of bullet proof vehicle, which amounts to
destruction of public property. It is stated that the accused should
be punished under the provisions of PDPP Act and Sections 307,
326, 427, 503, 506, 323, 120B r/w 34 of IPC. Basing on the said
report, the police have registered the present crime.
4, Heard Sri N.Ashwani Kumar, learned counsel for the
petitioner and learned Additional Public Prosecutor appearing on
behalf of the respondent-State.
5. Learned counsel for the petitioner submits that as the
petitioner belongs to rival political party with an apprehension that
he may be arrested, he along with others filed Crl.P.No.128 of 2021
before this Court seeking pre-arrest bail. However, the same was
closed by order dated 11.01.2021, recording the submission made
by the learned Additional Public Prosecutor that apprehension of
the petitioners is baseless, as their names were not included in the
crime. Thus, the question of custody does not arise. He submits
that to the surprise of the petitioner, the respondent-police visited
his house on 20.01.2021 at 5.00 p.m., dragged him out of his
|
house in most inhuman manner, pushed him into the police
EN
vehicle, which was overloaded and crowded by then. He was taken
away by pushing aside his family members. He submits that while
steps were being taken to file a habeas corpus petition, the police
produced him before the Magistrate on 21.01.2021.
6. Learned counsel for the petitioner submits that at the time of
remand, due to ill-health when the petitioner fell down in front of
the Magistrate, the police were directed to take A-4 to the
Government Hospital and after getting certification that he is
physically fit, he was directed to be produced for remand. The
other accused were remanded on the same day. He submits that
again on 30.01.2021 the police after obtaining medical certificate
have produced the petitioner before the Magistrate, on that day the
Magistrate was not satisfied with the health condition of the
petitioner, as such directed the police to take the petitioner for
treatment and also directed the Superintendent, District Head
Quarter Hospital, Vizianagaram to give treatment to the petitioner
and to issue fitness certificate.
7. Learned counsel for the petitioner submits that he has
approached this Court by filing Crl.P.No.349 of 2021 under Section
482 of Cr.P.C to quash F.I.R No.1 of 2021 on the file of Nellimarla
Police Station and this Court by order dated 27.01.2021 has
directed the investigating officer not to take any coercive steps
against the petitioner, if not already arrested and the investigation
may goon. On that day, it was informed by the learned Additional
Public Prosecutor that the petitioner was already arrested, as such
the petitioner is constrained to move this Court by filing the
present application under Section 439 of Cr.P.C. seeking regular
bail.
8. Learned counsel for the petitioner submits that either in the
complaint or in the remand report, there are no specific overt acts
against the petitioner and it is stated in the remand report that the
petitioner himself confessed about commission of the offence. He
submits that later in the report, it is specifically mentioned that
A-7 & A-8 with an intention to cause injury thrown water bottles
on the complainant and A-10 and A-12 pelted stones by aiming at
the complainant. There are no specific allegations against the
petitioner and only an omnibus allegation is made stating that A-4
to A-12 conspired with each other along with some other party
workers and attacked the complainant. He submits that petitioner
has been falsely implicated in this case for political reasons.
Further, taking into consideration the health condition of the
petitioner, he may be enlarged on bail.
9, Per contra, learned Additional Public Prosecutor submits
that the present petition under Section 439 of Cr.P.C is not
maintainable, as the condition precedent for entertaining the
petition for regular bail is custody of the accused. He submits that
the petitioner is neither in judicial custody nor in police custody.
In support of his contention, he relied on the Division Bench
judgment of this Court in Ahamed Riswan Vs. State of A.P., rep.
by its Principal Secretary, Home Department, Amaravati and
others!, wherein it was observed that "remanding an accused by
an order of Court is a pre-requisite for the purpose of making an
' 2019 (2) ALT (Crl.) 209 (DB) (A.P.)
application for seeking bail." He also placed before the Court the
judgment of a learned Single Judge in Alaparthi Chinna Vs. Kota
Lakshmi Satyanarayana and another?, wherein a contra view
was taken holding that "custody referred in Section 439 Cr.P.C need
not necessarily be judicial custody given under Section 167(2)
Cr.P.C. It can be either judicial custody or police custody under
Section 167(2) Cr.P.C or detention in custody of an arrested person
under Section 57 Cr.P.C. If custody in Section 439 Cr.P.C is to be
read as judicial custody, then it amounts to adding something which
the Parliament did not intend to add and which the Parliament did
not intend to restrict power of the High Court and the Court of
Session". He submits that in view of the Division Bench judgment
of this Court unless and until the petitioner is judicial custody, he
cannot maintain the application under Section 439 of Cr.P.C.
10. Learned Additional Public Prosecutor on the merits of the
case, submits that as per the remand report and 161 Cr.P.C
statements of the witnesses, prima facie it appears that the
accused has committed the offences as alleged in the complaint,
wherein the accused have damaged the public property, caused
grievous injuries to persons and tried to do away with the life of
the defacto complainant. Basing on the statement given by one
A.Srinu (LW8), the petitioner herein is arrayed as A-4. As the
investigation is still going on and they have to unravel the truth
and involvement of other accused, who were present at the time of
incident, as such the custodial interrogation of the petitioner is
necessary, he is not entitled for bail at this stage.
2.2012 (1) ALT (Crl.) 227 (A.P.)
11. In response to the contention of learned Additional Public
Prosecutor on the issue of maintainability of the application under
Section 439 of Cr.P.C., learned counsel for the petitioner relied on
the judgment of the Apex Court in Niranjan Singh and Ors. Vs.
Prabhakar Rajaram Kharote and Ors.3 and submits that the Apex
Court in detail has considered what is custody in the context of
Section 439 of Cr.P.C. It was observed that the accused who is
under the control of the Court or is in the /physical hold of an
officer with coercive power is in custody for the purpose of Section
439 of Cr.P.C. Learned counsel submits that it is the specific case
of the police that the petitioner was arrested and when he was
taking treatment in the hospital as per the direction of the
Magistrate, his personal liberty is curtailed. Hence, it has to be
concluded that the petitioner is in custody and he can maintain
the application under Section 439 of Cr.P.C.
12. This matter for the first time came up for hearing on
05.02.2021 and having heard the learned counsel on either side,
the matter was reserved for orders and directed to be listed on
08.02.2021. On that day, learned counsel for the petitioner
submitted that the learned Magistrate has remanded the petitioner
to judicial custody, the learned Additional Prosecutor cannot have
any objection on the maintainability of the petition. At the request
of learned Additional Public Prosecutor the matter was directed to
be listed on 09.02.2021 for orders. On 09.02.2021 after hearing
learned counsel on either side, the matter was directed to be listed
today i.e. 10.02.2021 for orders.
* (1980) 2 SCC 559 = MANU/SC/01 82/1980
13. Heard the learned counsel for the petitioner and the learned
Additional Public Prosecutor for State and perused the material
available on record.
14. Initially, learned Additional Public Prosecutor has argued
that as the petitioner is arrested by the police, he cannot move an
application for anticipatory bail, as the Magistrate has neither
remanded him by giving judicial custody nor police custody. In
such scenario, the petitioner cannot maintain an application under
Section 439 of Cr.P.C., as the custody is a pre-requisite. On
20.01.2021 he was arrested and produced before the Magistrate on
21.01.2021. The Magistrate directed the police to take the
petitioner to Government Hospital. Again on 30.01.2021 when he
was produced for remand, the Magistrate has directed the
Superintendent, District Head Quarter Hospital, Vizianagaram to
provide treatment to the petitioner and directed the police to take
the accused to the hospital. Initially when the petitioner has moved
for regular bail, the petitioner was remediless as per the argument
of the learned Additional Public Prosecutor. After filing the petition,
though the petitioner is remanded, still this Court proposes to deal
with the issue of maintainability of the petition, as the petitioner's
right to life and liberty are involved and a person cannot be left
remediless
15. Unless there is authorization from the Magistrate under
Section 167 (2) of Cr.P.C., the police officer who arrested the
accused has no discretion to keep the accused person under his
custody and if he is retained by the police, it becomes illegal
custody.
Fundamental rights occupy a place of pride in the Indian
Constitution. Article 21 provides "no person shall be deprived of
his life or personal liberty except according to procedure
established by law". Personal liberty, thus, is a sacred and
cherished right under the Constitution. The expression "life or
personal liberty" has been held to include the right to live with
human dignity and thus it would also include within itself a
guarantee against torture and assault by the State or its
functionaries. Article 22 guarantees protection against arrest and
detention in certain cases and declares that no person who is
arrested shall be detained in custody without being informed of the
grounds of such arrest and he shall not be denied the right to
consult and defend himself by a legal practitioner of his choice.
Clause (2) of Article 22 directs that the person arrested and
detained in custody shall be produced before the nearest
Magistrate within a period of 24 hours of such arrest, excluding
the time necessary for the journey from the place of arrest to the
court of the Magistrate. Article 20(3) of the Constitution lays down
that a person accused of an offence shall not be compelled to be a
witness against himself. These are some of the constitutional
safeguards provided to a person with a view to protect his personal
liberty against any unjustified assault by the State. In tune with
the constitutional guarantee a number of statutory provisions also
seek to protect personal liberty, dignity and basic human rights of
the citizens. Chapter V of Criminal Procedure Code, 1973 deals
with the powers of arrest of a person and the safeguards which are
required to be followed by the police to protect the interest of the
arrested person. Section 41, Cr. P.C. confers powers on any police
ft
+
officer to arrest a person under the circumstances specified therein
without any order or a warrant of arrest from a Magistrate. Section
46 provides the method and manner of arrest. Under this Section
no formality is necessary while arresting a person. Under Section
49, the police is not permitted to use more restraint than is
necessary to prevent the escape of the person. Section 50 enjoins
every police officer arresting any person without warrant to
communicate to him the full particulars of the offence for which he
is arrested and the grounds for such arrest. The police officer is
further enjoined to inform the person arrested that he is entitled to
be released on bail and he may arrange for sureties in the event of
his arrest for a non-bailable offence. Section 56 contains a
mandatory provision requiring this police officer making an arrest
without warrant to produce the arrested person before a Magistrate
without unnecessary delay and Section 57 echoes Clause (2) of
Article 22 of the Constitution of India. There are some other
provisions also like Sections 53 54 and 167 which are aimed at
affording procedural safeguards to a person arrested by the police.
Whenever a person dies in custody of the police, Section 176
requires the Magistrate to hold an enquiry into the cause of death.
(D.K. Basu Vs. State of West Bengal*)
16. To strike the balance between the needs of law enforcement
on the one hand and the protection of the citizen from oppression
and injustice at the hands of the law-enforcement machinery on
the other is perennial a problem of statecraft. The pendulum over
the years has swung to the right. We have earlier spoken of the
conflicting claims requiring reconciliation. Speaking pragmatically,
* (1997 )ISCC 416 = MANU/SC/0157/1997
there exists a rivalry between' societal interest in effecting crime
detection and constitutional rights which accused individuals
Possess. Emphasis may shift, depending on circumstances, in
balancing these interests as has been happening in America. Since
Miranda (1966) 384 U.S. 436) there has been retreat from stress
on protection of the accused and gravitation towards society's
interest in convicting law-brakers. Currently, the trend in the
Americal jurisdiction according to legal journals, is that 'respect for
(constitutional) principles is eroded when they leap their proper
bounds to interfere with the legitimate interests of society in
enforcement of its laws..... (Couch v. United States
MANU/USSC/0164/ 1973). Our constitutional perspective has,
therefore, to be relative and cannot afford to be absolutist,
especially when torture technology, crime escalation and other
Social variables affect the application of principles in producing
humane justice. (Smt. Nandini Satpathy v. P.L. Dani5)
17. It is appropriate to look at Section 167 of Cr.P.C., which
reads thus:
167. Procedure when investigation cannot be completed in twenty
four hours ~
(1) Whenever any person is arrested and detained in custody, and it
appears that the investigation cannot be completed within the period of
twenty-four hours fixed by section 57, and there are grounds for
believing that the accusation or information is well-founded, the officer
in charge of the police station or the police officer making the
investigation, if he is not below the rank of sub-inspector, shall
forthwith transmit to the nearest Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed relating to the case, and
shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this
section may, whether he has or has not jurisdiction to try the case,
from time to time, authorise the detention of the accused in such
custody as such Magistrate thinks fit, a term not exceeding fifteen days
° AIR 1978 SC 1025 = MANU/SC/0139/1978
in the whole; and if he has no jurisdiction to try the case or commit it
for trial, and considers further detention unnecessary, he may order
the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
1{(a) the Magistrate may authorise the detention of the accused person,
otherwise than in the custody of the police, beyond the period of fifteen
days, if he is satisfied that adequate grounds exist for doing so, but no
Magistrate shall authorise the detention of the accused person in
custody under this paragraph for a total period exceeding-
{i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment for a
term of not less than ten years;
(it) sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety days, or sixty
days, as the case may be, the accused person shall be released on bail
if he is prepared to and does furnish bail, and every person released on
bail under this sub-section shall be deemed to be to released under the
provisions of Chapter XXXIII for the purposes of that Chapter;]
12[(b) no Magistrate shall authorise detention of the accused in
custody of the police under this section unless the accused is produced
before him in person for the first time and subsequently every time till
the accused remains in the custody of the police, but the Magistrate
may extend further detention in judicial custody on production of the
accused either in person or through the medium of electronic video
linkage;};
(c) no Magistrate of the second class, not specially empowered in
this behalf by the High Court, shall authorise detention in the custody
of the police.
[Explanation I.-For the avoidance of doubts, it is hereby declared that,
notwithstanding the expiry of the period specified in paragraph (a), the
accused shall be detained in custody so long as he does not furnish
bail.]
[Explanation II.-- If any question arises whether an accused person
was produced before the Magistrate as required under clause (b), the
production of the accused person may be proved by his signature on
the order authorising detention or by the order certified by the
Magistrate as to production of the accused person through the medium
of electronic video linkage, as the case may be.]
Provided further that in case of a woman under eighteen years of
age, the detention shall be authorised to be in the custody of a
remand home or recognised social institution. |
(2A) Notwithstanding anything contained in sub-section (1) or sub-
section (2), the officer in charge of the police station or the police
officer making the investigation, if he is not below the rank of a sub-
inspector, may, where a Judicial Magistrate is not available, transmit
to the nearest Executive Magistrate, on whom the powers of a
Judicial Magistrate or Metropolitan Magistrate have been conferred, a
copy of the entry in the diary hereinafter prescribed relating to the
case, and shall, at the same time. forward the accused to such
Executive Magistrate, and thereupon such Executive Magistrate,
may, for reasons to be recorded in writing, authorise the detention of
the accused person in such custody as he may think fit for a term
not exceeding seven days in the aggregate; and on the expiry of the
period of detention so authorised, the accused person shall be
released on bail except where an order for further detention of the
accused person has been made by a Magistrate competent to make
such order; and, where an order for such further detention is made,
the period during which the accused person was detained in custody
under the orders made by an Executive Magistrate under this sub-
section, shall be taken into account in computing the period specified
in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the
Executive Magistrate shall transmit to the nearest Judicial Magistrate
the records of the case together with a copy of the entries in the diary
relating to the case which was transmitted to him by the officer in
charge of the police station or the police officer making the
investigation, as the case may be.
(3) | A Magistrate authorising under this section detention in the
custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate
making such order shall forward a copy of his order, with his reasons
for making it, to the Chief Judicial Magistrate. |
(5) If in any case triable by a Magistrate as a summons-case, the
investigation is not concluded within a period of six months from the
date on which the accused was arrested, the Magistrate shall make
an order stopping further investigation into the offence unless the
officer making the investigation satisfies the Magistrate that for
special reasons and in the interests of justice the continuation of the
investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence
has been made under sub-section (5), the Sessions Judge may, if he
is satisfied, on an application made to him or otherwise, that further
investigation into the offence ought to be made, vacate the order
made under sub-section (5) and direct further investigation to be
made into the offence subject to such directions with regard to bail
and other matters as he may specify.
18. In the case on hand from 20.01.2021 i.e. the day the
petitioner was arrested till the day he was remanded on
08.02.2021 he was in hospital under the supervision of hospital
authorities as well as police. According to the prosecution, as he
was not remanded, regular bail petition is not maintainable. In
these peculiar circumstances, whether the petitioner can be said to
be in custody and whether an application seeking bail under
Section 439 of Cr.P.C. is maintainable?
19. Section 439 of Cr.P.C. reads thus:
Section 439 - Special powers of High Court or Court of
Session regarding bail -
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be
released on bail, and if the offence is of the nature specified in sub-
section (3) of section 437, may impose any condition which it considers
necessary for the purposes mentioned in that sub-section;
(b} that any condition imposed by a Magistrate when releasing
any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before
granting bail to a person who is accused of an offence which is triable
exclusively by the Court of Session or which, though not so triable, is
punishable with imprisonment for life, give notice of the application for
bail to the Public Prosecutor unless it is, for reasons to be recorded in
writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person
who has been released on bail under this Chapter be arrested and
commit him to custody.
20. A bare reading of the provision makes it crystal clear that an
accused of an offence and in custody be released on bail. Then the
next issue that drawn the attention of this Court is what is
"Custody" in reference to Section 439 of Cr.P.C.
21. The word 'arrest' is derived from the French 'Arrester'
meaning 'to stop or stay' and signifies a restraint of the person.
Lexicologically, the meaning of the word 'arrest' is given in various
dictionaries depending upon the circumstances in which the said
expression is used. One of us, (S. Ratnavel Pandian, J as he then
was being the Judge of the High Court of Madras) in Roshan Beevi
v. Joint Secretary, Government of Tamil Nadu, (1984 Crl.L.J. 134)
had an occasion to go into the gamut of the meaning of the word
'arrest' with reference to various text books and dictionaries, the
New Encyclopedia Britannica, Halsbury's Laws of England, 'A
Dictionary of Law' by L.B. Curzon, Black's Law Dictionary and
Words and Pharoses'. On the basis of the meaning given in those
text books and lexicons, it has been held that "the word ''arrest'
when used in its ordinary and natural sense, means the
apprehension or restraint or the deprivation of one's personal
liberty. The question whether the person is under arrest or not,
depends not on the legality of the arrest, but on whether he has
been deprived of his personal liberty to go wherever he pleases.
When used in the legal sense in connection with criminal offences,
an 'arrest' consists in the taking into custody of another person
under authority empowered by law, for the purpose of holding or
detaining him to answer a criminal charge or of preventing the
commission of a criminal offence. The essential elements to
constitute an arrest in the above sense are that there must be an
intent to arrest under the authority, accompanied by seizure or
detention of the person in the manner known to law, which is so
understood by the person arrested."
There are various Sections in Chapter V of the Code titled
"Arrest of persons" of which Sections 41, 42, 43 and 44 empower
different authorities and even private persons to arrest a person in
given situation. Section 41 deals with the power of a police officer
to arrest any person without an order from a Magistrate and
without a warrant. Section 42 deals with the power of a police
officer to arrest any person who in the presence of a police officer
has committed or has been accused of committing a non-
cognizable offence and who refuses on demand "to give his name
and residence or gives a name or residence which such officer has
reason to believe to be false." Section 43 empowers any private
person to arrest any person who in his presence commits a non
cognizable offence, or any proclaimed offender, Section 44 states
that when any offence is committed in the presence of a Magistrate
whether Executive or Judicial, within his local jurisdiction, he may
himself arrest or order any person to arrest the offender and may
thereupon subject to the provisions contained in the Code as to
bail commit the offender to custody. (Directorate of Enforcement
Vs. Deepak Mahajan and Ors°).
22. The crucial question is when a person is in custody, within
the meaning of Section 439 Code of Criminal Procedure? When he
is duress either because he is held by the investigating agency or
other police or allied authority or is under the control of the Court
having been remanded by judicial order, or having offered himself
to the Court's jurisdiction and submitted to its orders by physical
presence. No lexical dexterity nor presidential profusion is needed
to come to the realistic conclusion that he who is under the control
of the Court or is in the physical hold to an officer with coercive
power is in custody for the purpose of Section 439. The word is of
elastic semantics but its core meaning is that the law has taken
control of the person. The equivocatory quibblings and hide-and-
seek niceties sometimes heard in Court that the police have taken
a man into informal custody but not arrested him have detained
him for interrogation but not taken him into formal custody and
other like terminological dubieties are unfair evasions of the
straightforwardness of the law.
Since the expression "custody" though used in various
provisions of the Code, including Section 439, has not been defined
in the Code, it has to be understood in setting in which it is used
© (1994) 3 SCC 440 = MANU/SC/0422/1994
is
and the provisions contained in Section 437 which relates to
jurisdiction of the Magistrate to release an accused on bail under
certain circumstances which can be characterized as "in custody"
in a generic sense. The expression "custody" as used in Section
439, must be taken to be a compendious expression referring to
the events on the happening of which Magistrate can entertain a
bail petition of an accused. (Nirmal Jeet Kaur vs. State of M.P.").
23. The accused were not absconding but had appeared and
surrendered before the Sessions Judge. Judicial jurisdiction arises
only when persons are already in custody and seek the process of
the court to be enlarged. We agree that no person accused of an
offence can move the court for bail Under Section 439 Cr.P.C.
unless he is in custody.
When is a person in custody, within the meaning of Section
439 Cr.P.C.? When he is in duress either because he is held by the
investigating agency or other police or allied authority or is under
the control of the court having been remanded by judicial order, or
having offered himself to the court's jurisdiction and submitted to
its orders by physical presence. No lexical dexterity nor
precedential profusion is needed to come to the realistic conclusion
that he who is under the control of the court or is in the physical
hold of an officer with coercive power is in custody for the purpose
of Section 439. This word is of elastic semantics but its core
meaning is that the law has taken control of the person. The
equivocatory quibblings and hide-and-seek niceties sometimes
heard in court that the police have taken a man into informal
custody but not arrested him, have detained him for interrogation
7 (2004) 4 SCC 558 = MANU/SC/0695/2004
but not taken him into formal custody and other like
terminological dubieties are unfair evasions of the
straightforwardness of the law. We need not dilate on this shady
facet here because we are satisfied that the accused did physically
submit before the Sessions Judge and the jurisdiction to grant bail
thus arose.
Custody, in the context of Section 439, is physical control or
a least physical presence of the accused in court coupled with
submission to the jurisdiction and orders of the court.
He can be in custody not merely when the police arrests him,
produces him before a Magistrate and gets a remand to judicial or
other custody. He can be stated to be in judicial custody when he
surrenders before the court and submits to its directions. In the
present case, the police officers applied for bail before a Magistrate
who refused bail and still the accused, without surrendering before
the Magistrate, obtained an order for stay to move the Sessions
Court. This direction of the Magistrate was wholly irregular and
maybe, enabled the accused persons to circumvent the principle of
Section 439 Cr.P.C. We might have taken a serious view of such a
course, indifferent to mandatory provisions by the subordinate
magistracy but for the fact that in the present case the accused
made up for it by surrender before the Sessions Court. Thus, the
Sessions Court acquired jurisdiction to consider the bail
application. It could have refused bail and remanded the accused
to custody, but, in the circumstances and for the reasons
mentioned by it, exercised its jurisdiction in favour of grant of bail.
The High Court added to the conditions subject to which bail was
to be granted and mentioned that the accused had submitted to
onto
the custody of the court. We therefore, do not proceed to upset the
order on this ground. Had the circumstances been different we
would have demolished the order for bail. We may frankly state
that had we been left to ourselves we might not have granted bail
but sitting under Article 136 do not feel that we should interfere
with a discretion exercised by the two courts below. (Niranjan
Singh's case (supra-3).
24. Learned Additional Public Prosecutor has relied on the
Division Bench judgment of this Court and submitted that this
Court held that remanding an accused by an order of Court is a
pre-requisite for the purpose of making an application for seeking
bail. That said judgment arises out of a Habeas Corpus petition
where the case of the petitioner therein was that as per Section
267 of Cr.P.C., the detenu must be in judicial custody under a
valid order of remand and that no remand order can be passed
invoking Section 267 of Cr.P.C. The sentence relied on by the
learned Additional Public Prosecutor is a part of the judgment in
Nirmal Jeet Kaur's case (supra-7), which was extracted by the
Division Bench of this Court and no ratio was laid down by the
Division Bench. In the light of language employed in Section 439
Cr.P.C and the decision of the Apex Court in Niranjan Singh case
(supra-3), the accused though in the strict sense was not
remanded by the Magistrate, but as per the direction of the
Magistrate he was admitted in the hospital. The day he was
produced before the learned Magistrate, he has submitted himself
to the jurisdiction of the Court. When the Magistrate directed the
police to admit him in the hospital and directed the hospital
authorities to treat him, even at that time, he was in the control of
police as well the hospital. By any stretch of imagination, it cannot
be said that he is not in physical control of the police. As such it
can be treated as custody and the accused in such a case is
entitled to move the application under Section 439 of Cr.P.C.
25. Coming to the merits of the case, there is no dispute about
the fact that initially the name of the petitioner was not mentioned
in the complaint. The relevant paragraphs of the remand report
reads thus:
"Basing on the strength of the statements of witnesses the Sections 143,
147, 149 IPC were auditioned in this case. As per the version of the
LWs-13 & 14 it isclearly established that the injured has been working
police in department of AP stateand attended the duties of PSOs to Sri V
Vijaya Sai Reddy, the section 332 IPC is added in this case.
As the prima-facie of the case is made out against the accused, efforts have
been made to apprehend them. While so, on 20/01/2021 having receipt of
information regarding the movements of A-4, I have secured two mediators,
surprised the house of A- 4 Suvvada Rvisekhar at Boddapeta (v) at 17:00
hours, taken him in to custody and got recorded his confessional
statement in the presence of mediators under cover of a mediators
report. In which he voluntarily confessed that Presently he is residing at
Plot No-1, Padmavatlii Nagar-1, Vizianagaram. He studied B.S. He is
doing cultivation andalso actively participating in Telugudesam activities
and programmes. Present he is actingas Telugudeaam party District Vice
President and District Secretary. He is in touch with Telugudesam
workers in the Mandal and participating in all Party activities and also
conducting the party programmes. While so, on 29/12/2020 at about
11:30 hours he attended puberty function of the daughter of Palli
Bhaskararao daughter at Pinathadivada (v). On the same day at 12:30
hours the Ramathirtham village ex-surpanch Thaddi Ramya Mandakini
husband Thaddi Satyanarayana informed him over phone that "some
unknown persons demolished the Lord Shree Rama idol on the
Bodikonda hill. In this connection the BJP party leaders visiting
Ramathirtham village and proposed to organize an event from
Telugudesam party". After sometime, he also received on phone call from
his party leader and Ex-MPP of Poosapatirega viz., Mahanthi
Chinnamnaidu) and proposed to conduct a programme at
Ramathirtham from Telugudesam party. Subsequently, on 01/01/2021
he received information that their party national president and Ex- Chief
Minister Sri. Nara Chandarbabu Naidu is also visiting Ramathirtham on
02/0 If 2021 in view of the above program . On that lie gathered all of his
party members of the Mandal and he along with his brother-in-law
Kadagala Anakdakumar went to Ramathirtham on 02/01/2020 at about
11:00 hours. At about 11:30 hours, his party ex- president Kimidi Kala
Venkatarao visited Ramathirtham with his followers. They all gathered
under a tent on the left side of steps and discussed about the
programme. Meanwhile, at about 12:00 hours, YSR Party MP Vijayasai
Reddy, the District MLAs, Kolagatla Veerabadhra Swami, Botsa
Appalanarasayya, Kadubandi Srinivasarao, Sambangi Chinna
Appalanaidu, Alajangi Jogara, MLC Penumatsa Suryanarayana raju and
Majji Srinivasarao and some other YSR party leaders came there on
various vehicles and went to the top of Bodikonda hill through the steps.
a"
While they gathered under the hill at the steps at about 1 p.m. MP
Vijayasaireddi and other MLAs and MLCs alighted from the hill and
while they are proceeding to their vehicles they attacked on
Vijayasaireddy. The accused A-4 to A-12 and others all pelted stones,
water bottles and footwear on the complainant with an intention to
eliminate him. During this attack the front wind screen of Vijayasaireddi
vehicle front view glass was damaged and his gunman received injury on
his hand, Meanwhile, Police rushed to the spot and rescued them from the
spot".
Investigation in this case disclosed that a state wide famous Sri Rama
Temple is situated on the Neelachalam/Bodkonda hill top at
Ramathirtham (v) of Nellimarla mandal. On the intervening night of 28/2
9-12/2020 some unknown miscreants have removed the head of stone idol
of Lord Sri Rama situated in the above temple. With regard to the above
incident, Sec. 30 Police Act was promulgated in the village Ramathirtham
for one month ie. from 01/01/2021 to 31/01/2021 to maintain the peace
and tranquility as it is a sensitive issue. While the things stood thus, the
complainant proposed to visit the temple on 02/01/2020 and announced
the tour programme to his party leaders, District MLAs, MLC and other
concerned officials. On 02/01/2021 at about 11:00 hours, A-3 to A-12 and
some others of their party workers gathered, A-3 has conducted a meeting
by the left side of steps at the foot of hill (Bodikonda) with his party
workers by violating Sec. 30 of Police Act without out prior permission and
boost up the Telugudesam party workers to participate in the agitation. At
about 12 noon the complainant along with LWs 2. to12 went to the foot of
hill (Bodikonda) on their respective vehicles and went to the hill top. After
completion of their programme on the hill top all are returned from
there and got down the hill at about 13:00 hours. On seeing the
complainant, the A-4 to A-12 conspired with each other along with some
other party workers, attacked the complainant with acommon object to
eliminate the complainant and pelted stones, water bottles and
footwear. During the attack A-7, A-8 with an intention to cause injury
thrown water bottles on the complainant. A-10 and A-12 pelted stones by
aiming the complainant. One stone hits the front view glass of the
complainant's bullet proof vehicle i.e. TATA Safarivehicle bearing No. AP
39 P 0014 provided by the government of AP which is public property
and it was damaged. One stone hits the hand of the complainant's gunman
and he received an injury. Timely, Police rescued the complainant and
saved his life from the hands of the accused."
26. In the entire remand report it is nowhere stated how the
police came to know about the involvement of the petitioner in the
crime. As per the remand report it is the confessian of the accused
that he has committed the alleged acts. In the remand report,
there are specific overt acts against A-7, A-8, A-10 and A-12, but
as far as the petitioner is concerned nothing is attributed to him.
Only omnibus allegation is made in the remand report that A-4 to
A-12 conspired with each other and along with some other party
workers attacked the complainant.
27. This Court taking into consideration the contents of the
remand report and the complaint, prima facie is of the view that
there are no specific overt acts against the petitioner and nothing
has been placed on record to connect the accused to the alleged
offences. As such this Court deems it appropriate to grant bail to
the petitioner.
28. Accordingly, this Criminal Petition is allowed. The petitioner
/ Accused No.4 shall be enlarged on bail on his executing a bond
for a sum of Rs.20,000/- (Rupees twenty thousand only) with two
sureties each for a likesum to the satisfaction of the Special
Judicial Magistrate of First Class (Excise), Vizianagaram. On such
release, the petitioner shall appear before the Station House
Officer, Nellimarla Police Station, Vizianagaram District on 1st day
of every month between 10.00 a.m. and 12.00 noon till the charge
sheet is filed. The petitioner shall cooperate with the investigation
agency.
Consequently, all the pending miscellaneous applications
shall stand closed.
Sd/-P.VenkataRamana
/ ; DEPUTY REGIS AR
TRUE COPY//
For
be sa Mt sng
The Special Judicial Magistrate First Class Court (Excise), Vizianagaram, A.p.
The Superintendent, Sub Jail, Vizianagaram, A.P.
The Station House Officer, Nellimarla PS, Vizianagaram District, A.P. (by RPAD)
The Station House Officer, Vizianagaram Rural P.S., Vizianagaram District, A.P. (by
RPAD) Lf
One CC to SRI N. ASHWANI KUMAR Advocate [OPUC]
One CC to the Public Prosecutor, High Court of AP [OPUCc]~
One spare copy
PWNE
ANID
HIGH COURT
LKJ
DATED:10/02/2021
ORDER
CRLP.NO.334 OF 2021
DIRECTION
