Andhra Pradesh High Court - Amravati

Code Of The Criminal Procedure vs Unknown on 20 September, 2021

       THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                           I.A.NO.1 of 2021

                               IN / AND

               CRIMINAL PETITION NO.5083 of 2021


COMMON ORDER:-

      The 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/A1 in connection with S.C.No.110 of

2016 on the file of IX Additional District and Sessions Judge,

Chittoor arising out of Crime No.130 of 2015 of Chittoor I Town

Police Station, Chittoor District registered for the offences punishable

under Sections 147, 148, 302, 307, 324, 120(B) read with 149, 212,

216 and 201 of the Indian Penal Code, 1860 (for short „IPC‟) and

Sections 25(1B), 25(1AAA) and 27 of the Indian Arms Act, 1959 (for

short the „Arms Act‟).


2.    I.A.No.1 of 2021 is filed by K.Kishore (LW2) styling himself as

victim and cousin of deceased No.1, to permit him to assist learned

Assistant Public Prosecutor through his counsel.


3.    The case of the prosecution is that in furtherance of previous

enmity between A1 and deceased No.2 i.e. Katari Mohan, on

17.11.2015, A1 to A8 assembled in the office premises of A1 and in

pursuance of their plan A6 received information over phone about

the presence of deceased Nos.1 and 2 in the Mayor‟s chamber,

Municipal Corporation, Chittoor through LW36 who was specially

employed to pass on the information about movement of deceased
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Nos.1 and 2. On receipt of said information A1 and A2 wore burkas,

carried with a hand bag and sticks handle bag containing vegetables

and curry leaves. A1 to A5 entered into Mayor‟s chamber, fired

deceased No.1 and hacked deceased No.2 who died while undergoing

treatment. Basing on the same above crime is registered and

numbered as S.C.110 of 2016.


4.   Heard Sri P.Veerareddy, learned Senior Counsel representing

M/s Sodum Anvesha, learned counsel for the petitioner, learned

Assistant Public Prosecutor for the respondent-State and Sri Posani

Venkateswarlu, learned counsel representing Sri P.Sai Surya Teja,

learned counsel appearing on behalf of the victim.


5.   Learned Senior Counsel submits that the petitioner is innocent

and he is falsely implicated in the alleged crime. He submits that on

30.11.2015 he voluntarily surrendered before learned IV Additional

Metropolitan Magistrate, Chittoor and since then he is in custody. He

submits that the petitioner is none other than the nephew of the

Mayor and there are no disputes between them and the prosecution

nowhere alleged any mens rea on the petitioner/A1 for committing of

such grave offence which clearly shows that the petitioner/A1 was

unnecessarily implicated in the crime. He submits that there is delay

in registering FIR, which establishes that there are highly influenced

persons who are inimical towards the petitioner. He submits that the

petitioner is languishing in jail since long period, which is in

violation of the directions of the Hon‟ble Apex Court and as there is

no possibility of conducting trial in S.C.No.110 of 2016, the
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petitioner‟s case may be considered for grant of bail. Learned senior

counsel relied upon the following judgments of the Hon‟ble Apex

Court.


6.       The appellant-accused is in custody for a period of over two

years facing charges under Sections 420, 467, 468, 471 and 120-B

of the Penal Code, 1860 (for short "IPC"). Though charge sheet has

been submitted as far back as in May 2015, the trial has not

commenced. Even charges have not been framed against the

appellant-accused. It is stated at the Bar that there are total of 13

cases against the appellant-accused [8 cases for the offence(s) under

IPC and 5 cases for the offence(s) under the Prevention of Money-

Laundering Act, 2002 (for short "PMLA")].

         ...

Be that as it may, having regard to the period of custody

suffered and the fact that the trial has not commenced we are of the

view that the appellant-accused should be released on bail. We order

accordingly. ...

(Sharad T. Kabra v. Union of India1)

7. ... The practice not to release on bail a person who has been

sentenced to life imprisonment was evolved in the High Courts and

in this Court on the basis that, once a person has been found guilty

and sentenced to life imprisonment-, he should not be let loose, so

long as his conviction and sentence are not set aside, but the

underlying postulate of this practice was that the appeal of such

person would be disposed of within a measurable distance of time, so

2018 (14) SCC 493

that if he is ultimately found to be innocent, he would not have to

remain in jail for an unduly long period. The rationale of this practice

can have no application where the Court is not in a position to

dispose of the appeal for five or six years. It would indeed be a

travesty of justice to keep a person in jail for a period of five or six

years for an offence which is ultimately found not to have been

committed by him. Can the Court ever compensate him for his

incarceration which is found to unjustified? Would it be just at all for

the Court to tell a person: "We have admitted your appeal because

we think you have a prima facie case, but unfortunately we have no

time to hear your appeal for quite a few years and, therefore, until we

hear your appeal, you must remain in jail, even though you may be

innocent?" What confidence would such administration of justice

inspire in the mind of the public ? It may quite conceivably happen

and it has in fact happened in a few cases in this Court, that a

person may serve out his full term of imprisonment before his appeal

is taken up for hearing. Would a judge not be overwhelmed with a

feeling of contrition while acquitting such a person after hearing the

appeal ? Would it not be an affront to his sense of justice ? Of what

avail would the acquittal be to such a person who has already served

out his term of imprisonment or at any rate a major part of it ? It is,

therefore, absolutely essential that the practice which this Court has

been following in the past must be reconsidered and so long as this

Court is not in a position to hear the appeal of an accused within a

reasonable period of time, the Court should ordinarily, unless there

are cogent grounds for acting otherwise, release the accused on bail

in cases where special leave has been granted to the accused to

appeal against his conviction and sentence.

(Kashmira Singh v. State of Punjab2)

8. It is no doubt true that this Court has repeatedly emphasized

the fact that speedy trial is a fundamental right implicit in the broad

sweep and content of Article 21 of the Constitution. The aforesaid

article confers a fundamental right on every person not to be

deprived of his life or liberty except in accordance with the procedure

prescribed by law. If a person is deprived of his liberty under a

procedure which is not reasonable, fair, or just, such deprivation

would be violative of his fundamental right under Article 21 of the

Constitution. It has also been emphasized by this Court that the

procedure so prescribed must ensure a speedy trial for determination

of the guilt of such person. It is conceded that some amount of

deprivation of personal liberty cannot be avoided, but if the period of

deprivation pending trial becomes unduly long, the fairness assured

by Article 21 would receive a jolt.

(Surinder Singh v. State of Punjab3)

9. It is conceded at the Bar that the sentences passed on all other

three accused-appellants have been suspended and they have been

ordered to be released on bail and so far as the present appellant

before us is concerned his case cannot be distinguished from the

cases of other accused-appellants so far as the role assigned to them

in the incident is concerned. In such circumstances, we feel, it will

1977 (4) SCC 291

2005 (7) SCC 387

be just and proper not to deny a similar relief to the present

appellant as has been allowed to the three others.

(Sham Lal v. State of Haryana4)

10. Learned senior counsel also relied on the order dated

02.11.2016 In CRLAMP No.1687 of 2016 in CRLA No.607 of 2011,

wherein the composite High Court of Andhra Pradesh has evolved

criteria for grant of bail pending the criminal appeals filed against

the conviction for the offences, including the one under Section 302

of IPC, and sentencing of the appellants to life among other allied

sentences, are to be considered.

11. Learned senior counsel submits that in view of law laid down

by the Hon‟ble Apex Court, as the petitioner is languishing in jail

from the last 6½ years, as there is no possibility of concluding the

trial, petitioner‟s case may be considered for grant of bail.

12. Sri P.Sai Surya Teja, learned counsel has filed I.A.No.1 of 2021

on behalf of K.Kishore, who is the cousin of deceased No.1 to permit

him to assist the Public Prosecutor under Section 24 (8) of Cr.P.C.

13. Sri Posani Venkateswarlu, learned counsel representing Sri

P.Sai Surya Teja, submits that the petitioner has got criminal

antecedents and he is accused in as many as twelve crimes. He

submits that in connection with Crime No.145 of 2007 of I Town

Police Station, Chittoor, which was registered for the offences

punishable under Sections 302 and 307 of IPC, which was numbered

as S.C.330 of 2010 on the file of learned IX Additional Sessions

2004 (13) SCC 469

Judge, Chittoor, the petitioner was convicted and sentenced to

undergo life imprisonment on 12.03.2018, against which the

petitioner preferred Crl.A.No.1094 of 2018 and the petition filed by

him seeking suspension of sentence and bail was dismissed on

23.10.2018.

14. He submits that the petitioner was also accused in Crime

No.15 of 2007 of I Town Police Station, Chittoor registered for the

offences under Section 302 and 307 of IPC and pending the same

petitioner committed brutal double murder. He submits that in crime

No.159 of 2014 of I Town Police Station, Chittoor registered for the

offences under Section 353 and 506 read with 34 IPC, he was

convicted and sentenced to imprisonment through judgment dated

31.08.2015 passed in C.C.No.58 of 2015 by learned IV Additional

Judicial Magistrate of First Class, Chittoor. The same was confirmed

by the Principal District and Sessions Judge, Chittoor in

Crl.A.No.300 of 2015 on 20.03.2017. He submits that the petitioner

is notorious rowdy sheeter and if he is released on bail, there is every

likelihood of influencing the witnesses and doing away with the life of

the injured. He further submits that A23 who was on bail and who

supplied pistol to the petitioner threatened the investigating officers

in the present case, as such written reports were submitted and

Crime Nos.78 and 79 of 2019 were registered by Chittoor II Town

Police Station. He submits that petitioner filed Crl.P.No.4171 of 2017

before the composite High Court with the same pleadings and the

same was dismissed. Thereafter he filed SLP (Crl.) No.5490 of 2021

and the same was dismissed. Learned counsel for victim placed

reliance on Virupakshappa Goud and another vs. State of

Karnataka and another5, wherein the Hon‟ble Apex Court held that

when the bail application rejected twice and SLP for grant of bail as

also dismissed, the principle that accused is presumed to be

innocent till found guilty will not apply. He further submits that the

earlier bail petitions filed by the petitioner were dismissed and there

are no changes of circumstances in between the rejection of last bail

to the petitioner. Hence, the petitioner is not entitled for bail.

15. Learned Assistant Public Prosecutor has strenuously opposed

the bail application and submits that the petitioner is involved in

twelve criminal cases and rowdy sheet is opened against him.

Further, he is already convicted and sentence to undergo life

imprisonment for the offence under Section 302 of IPC. He submits

that if the petitioner is enlarged on bail, he would definitely threaten

the witnesses. The Court below has rightly dismissed the bail

application and there are no grounds to release the petitioner on

bail.

16. Learned senior counsel for the petitioner opposed I.A.No.1 of

2021 filed by K.Kishore styling himself as victim and cousin of

deceased No.1 to assist the Public Prosecutor. He submits that

according to said K.Kishore, he is cousin of deceased No.1 and he is

related to him and in the charge sheet he is referred as witness only.

AIR 2017 sc 1685

He submits that said K.Kishore cannot have any right of audience

and he cannot term himself as victim.

17. It is appropriate to look at the definition of word "Victim",

which is defined under Section 2 (wa) of Cr.P.C. which reads thus:

"victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;

18. As rightly argued by learned senior counsel as defined under

Section 2 (wa) of Cr.P.C., victim means any person who has suffered

any loss or injury in the hands of accused. In this case, just because

he is claiming to be the cousin of deceased, cannot be construed as

"victim", as defined under Section 2(wa) of Cr.P.C. Accordingly,

I.A.No.1 of 2021 is liable to be dismissed.

19. Insofar as granting bail to the petitioner is concerned, no doubt

petitioner is in jail from the last 6½ years but at the same time, it is

also an admitted fact that petitioner is also accused in a case under

Section 302 of IPC and undergoing life imprisonment for the said

offence and in the appeal, the application filed seeking suspension of

sentence and bail was dismissed. As submitted by learned senior