Andhra Pradesh High Court - Amravati

Bhimavarapu Kanaka Durga, vs The State Through on 17 March, 2021

Bench: Lalitha Kanneganti

     HONOURABALE SMT. JUSTICE LALITHA KANNEGANTI

               Criminal Petition No.995 of 2021
ORDER:

This Criminal Petition is filed under Section 438 of the

Code of Criminal Procedure, 1973 (for short "Cr.P.C.") seeking

pre-arrest bail to the petitioner/A.2 in the event of his arrest in

connection with Crime No.306 of 2020 of Bhimavaram I Town

Police Station, West Godavari District, registered for the offences

punishable under Sections 420, 409, 468 read with 34 of the

Indian Penal Code, 1860.

2. A report is lodged by the de facto complainant stating that

the Godavari Urban Multi State Credit Cooperative Society

Limited at Nanded is registered under Multi State Cooperative

Societies Act, 2002 and it has branches in several states and in

the State of Andhra Pradesh one of its branches is located at

Bhimavaram. It is alleged that one Cherugonda Siva Naga Durga

Prasad was the Branch Manager and the petitioner was

appointed as Cashier. It is alleged that the petitioner/A.2 along

with A.1 with an intention to deceive the society dishonestly and

fraudulently fabricated 18 deposits and raised a loan of

Rs.45,00,000/- against the said deposits and all together they

misappropriated nearly an amount of Rs.50,00,000/-. Basing on

the same, the present crime is registered.

3. Heard Sri Mangena Sree Rama Rao, learned counsel for

the petitioner and the learned Public Prosecutor for the

respondent-State.

4. Learned counsel for the petitioner submits that the

petitioner is no way concerned to the alleged offence of 2 LK, J

CRLP.No.995 of 2021

misappropriation of funds. The petitioner neither colluded with

A.1 nor misappropriated the funds. In fact, the petitioner was

deceived by A.1 and she is innocent of the said offence. Learned

counsel placed reliance on the report, which does not contain

the signature or any other endorsement. He also placed reliance

on the explanation submitted by the petitioner to the

suspension order dated 03.10.2020, wherein the petitioner has

categorically stated that all the acts of misappropriation of

amounts and fabrication of documents were committed by A.1,

the Branch Manager, petitioner clearly stated that taking

advantage of her innocence and lack of experience how the

Branch Manager exploited her, the audit team advised her not

to come to office and they will inform the future date when she

can come to office. It is also stated that on her protest, the said

Branch Manager, who is A.1 with his own hand writing issued a

letter to the petitioner explaining how he made use of the said

cashier ID and how he exploited her innocence and

inexperience.

Learned counsel for the petitioner further submits that

earlier the petitioner moved application in Crl.P.No.5780 of 2020

seeking bail, but the same was dismissed as withdrawn. He

further submits that thereafter, petitioner tested Covid-19

positive as such she moved the present application seeking pre-

arrest bail. In this regard, the learned counsel placed reliance

on the following judgments of the Hon'ble Apex Court 3 LK, J

CRLP.No.995 of 2021

Siddharam Satlingappa Mhetre v. State of Maharashtra and

others1, wherein it is held as follows:

".......It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because section 438 Cr.P.C. has not been allowed its full play. The Constitution Bench in Sibbia's case (supra) clearly mentioned that section 438 Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were sections 437 and 439 Cr.P.C. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia's case (supra).

According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis- `-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court.

The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.

It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided......"

Gudikanti Narasimhulu and others v. Public Prosecutor,

High Court of Andhra Pradesh2, wherein it is held as follows:

"Having grasped the core concept of judicial discretion and the constitutional perspective in which the court must operate public policy by a restraint on liberty, we have to proceed to see what are the relevant criteria for grant or refusal of bail in the case of a person who has either been convicted and has appealed or one whose conviction has been set aside but leave has been granted by this Court to appeal against the acquittal. What is often forgotten, and therefore warrants

(2011) 1 SCC 694

(1978) 1 SCC 240 4 LK, J

CRLP.No.995 of 2021

reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said :

"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."

(R.v Rose-1898 18 Cox CC. 717; 67 LJQD 289 quoted in The Granting of Bail', Mod. Law Rev. Vol. 81, Jan. 1968 p. 40, 48).

This theme was developed by Lord Russel of Killowen C.J., when he charged the grand jury at Salisbury Assizes, 1899 :

it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer classes who did not appear, for their circumstances were such as to tie them to the place where they carried on their work. They had not the golden wings with which to fly from justice." [(1899) 63 J.P. 193, Mod. Law, Rev. p. 49 ibid].

In Archbold it is stated that "The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial....

The test should be applied by reference to the following considerations:

(1) The nature of the accusation. (2) The nature of the evidence in support of the accusation.

(3) The severity of the punishment which conviction will entail... (4) Whether the sureties are independent, or indemnified by the accused person..... "

Rani Dudeja v. State of Haryana3, wherein it is held as follows:

"We are afraid, the stand taken by the High Court cannot be appreciated. The petition was for anticipatory bail and the one which had been filed earlier might have been withdrawn in a given situation, without inviting the Court to consider the same on merits. On change of circumstances, when another application under Section 438 Cr.P.C. was filed, the High Court should have considered the same on merits. The principle of res judicata could not have operated in an application for bail."

Ravindra Saxena v. State of Rajasthan4, wherein it is held as

follows:

"........There is also no reason to deny anticipatory bail merely because the allegation in this case pertains to cheating or forgery of a valuable security. The merits of these issues shall have to be assessed at the time of the trial of the accused persons and denial of anticipatory bail only on the ground that the challan has been presented would not satisfy the requirements of Sections 437 and 438 Cr.P.C........."

.........we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal......."





    (2017) 13 SCC 555

    2009 (8) Supreme 225
                                                    5                                               LK, J

                                                                             CRLP.No.995 of 2021

Sumit Mehta v. State of N.C.T. of Delhi5, wherein it is held as

follows:

"...........The law presumes an accused to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution.

14) We also clarify that while granting anticipatory bail, the Courts are expected to consider and keep in mind the nature and gravity of accusation, antecedents of the applicant, namely, about his previous involvement in such offence and the possibility of the applicant to flee from justice. It is also the duty of the Court to ascertain whether accusation has been made with the object of injuring or humiliating him by having him so arrested. It is needless to mention that the Courts are duty bound to impose appropriate conditions as provided under sub- section (2) of Section 438 of the Code........."

Relying on the above judgments, learned counsel for the

petitioner submits that this is not a case where custodial

interrogation is required and as the petitioner is ready to

cooperate with the enquiry, she is entitled for a pre-arrest bail.

On the other hand, learned Additional Public Prosecutor

submits that the investigation is pending and 19 witnesses are

examined. He submits that as per the audit conduct and the

investigation, so far reveals that the petitioner is responsible for

all the acts committed by them. Even the affected parties were

already examined and the investigation is pending, at this stage,

if the petitioner is enlarged on pre-arrest bail, there is every

likelihood of influencing the witnesses and hampering the

investigation process. He placed reliance on the judgment of the

Hon'ble Supreme Court in G.R. Ananda Babu v. State of

Tamilnadu dated 28.01.2021 and submits that in view of law

laid down by the Hon'ble Apex Court, a second bail application

for pre-arrest bail is not maintainable unless there are changed

circumstances.



    (2013) 15 SCC 570
                                    6                                   LK, J

                                                        CRLP.No.995 of 2021

While granting pre-arrest bail, the court has to take into

consideration certain factors- 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

humiliating the applicant by having him so arrested. There is no

dispute about the personal liberty of the petitioner is infringed,

but at the same time, while granting bail, the court should also

to take into consideration the gravity of the offence. In this case,

some innocent people were deceived and an amount of