Guttula Udav Surya Kumar, vs The State Of Andhra Pradesh
2022 Latest Caselaw 5155 AP

     THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

           CRIMINAL PETITION NO.6326 of 2022

ORDER:-

      This Criminal Petition is filed under Sections 437 and 439

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

the petitioner seeking regular bail.


2.    Crime No.140 of 2022 of Amalapuram Town Police Station

is registered for the offences punishable under Sections 341,

143, 144, 147, 148, 151, 336, 435, 188 read with Section 149 of

IPC, Sections 3 and 4 of The Prevention of Damage to Public

Property Act, 1984 and Section 32 of Police Act, 1861. The

petitioner herein was arrayed as A-53.


3.    The above crime was registered basing on the report

lodged by Naga Venkata Ratna Giri Babu Sidhala, Driver of RTC

Bus, with regard to the incident that took place on 24.05.2022

pursuant to the notification issued by the Government by

changing the name of Konaseema District as Dr.B.R.Ambedkar

Konaseema District.


4.    The case of the prosecution in brief is that on 24.05.2022

at about 4:00 P.M., on a call given by JAC of Konaseema

Sadhana Committee, huge number of people gathered together

for submitting objections pursuant to issuance of Gazette

notification with regard to change of name of Konaseema District

by violating the proceedings issued under Section 144 of Cr.P.C.

and Section 30 of the Police Act. The mob started rally at

Kalasam Centre, Amalapuram Town and proceeded to Clock

Tower Centre and in the meanwhile various groups of public
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came from four corners to the clock tower centre and formed

into a huge mob.


5.    Thereafter the mob moved to Collectorate and on the way

to Collectorate when the Police were discharging their duties, the

mob pelted stones on the Police and burnt BVC collage bus which

was used as transport vehicle for the Police.


6.    Further   when      Police   tried    to      control   the   mob    at

collectorate, the mob pelted stones on Police personnel due to

which some of the Police sustained injuries, damaged the glasses

of Collectorate Office and Ambedkar Bhavan.


7.    Thereafter, the mob proceeded to Red Bridge (Erra

Vanthena), intercepted two RTC buses, damaged them and set

fire to the buses.


8.    The mob further moved towards the house of MLA and

pelted stoned on the house due to which glasses were damage.

When cousin of MLA tried to pacify the matter and while he was

taking video of the situation, the mob poured petrol on him, but

he managed to escape. Then the mob entered into the house of

MLA, set fire to the motorcycles and entire furniture in the house

including house.


9.    Heard Sri G.Ram Gopal, learned counsel for the petitioner

and   learned   Special    Assistant       Public     Prosecutor    for   the

respondent-state.

10. Learned counsel for the petitioner submits that the

petitioner is innocent and he is no way connected with the

alleged offence. He submits that the name of the petitioner does

not reflect in any of the FIR and only basing on the confession of

other accused, petitioner was arrested and in the present crime

he was arrested under P.T.warrant and he is languishing in jail

since 28.05.2022. He submits that petitioner is falsely implicated

for extraneous consideration and to harass him. He also would

submit that the offences alleged would not attract against the

petitioner since he neither participated in agitation nor conspired

with any other person in commission of the offence.

11. Learned counsel for the petitioner further submits that he

moved lunch motion today on the ground that the petitioner's

sister marriage is on 20.08.2022 and he is only brother to look

after the marriage and as this Court is being granting regular

bail/anticipatory bail for the very same incident/offences/cases

and prayed to consider this case on the same lines. He also

submits that the petitioner was granted bail in similar crimes

registered by the prosecution. Hence, he prays to grant bail to

the petitioner.

12. Learned Special Assistant Public Prosecutor has contended

that this Hon'ble Court is considering the bail applications in

similar lines and he got instructions that the petitioner's sister's

marriage is going to be performed on 20.08.2022. He further

contended that the other accused confessed about the role of the

petitioner in the alleged crime, as such he is shown as accused

in the above crime. He submits that investigation is pending and

offences are serious in nature and hence petitioner is not entitled

to grant bail.

13. The learned Special Assistant Public Prosecutor, while

drawing attention of this Court to the decision of the Hon'ble

Supreme Court in Kodungallu Film Society v. Union of

India1, contended that if at all this Court wants to consider

granting bail to the petitioner, costs for damaging public

property may be imposed on them as per the decision of the

Hon'ble Supreme Court. The relevant portion of the said decision

reads as under:

C. Liability of person causing violence

a) .......

b) .......

c) A person arrested for either committing or initiating, promoting, instigating or in any way causing to occur any act of violence which results in loss of life or damage to property may be granted conditional bail upon depositing the quantified loss caused due to such violence or furnishing security for such quantified loss......"

14. A perusal of the complaint discloses that initially the

petitioner's name is not reflected in the said crime, but on the

basis of the confession statement of the other accused and/or on

the basis of the electronic evidence, the petitioner was

implicated.

15. With regard to the contention of the learned Special

Assistant Public Prosecutor, relying on the judgment cited supra,

till today, there is no material to show that the petitioners have

damaged any property. In view of the same, the decision relied

on by the learned Special Assistant Public Prosecutor cannot be

made applicable at this stage and his request to impose costs

cannot be considered.

(2018) 10 SCC 713 : 2018 SCC Online SC 1719

16. The Hon‟ble Apex Court in Siddharam Satlingappa

Mhetre Vs. State of Maharashtra and Ors2 laid the

following principles which are to be considered while

granting bail.

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused 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;

iv. The possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

AIR 2011 SC 312 = MANU/SC/1021/2010

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

17. The record reveals that pursuant to notification issued by

the Government about change of name of Konaseema District as

Dr.B.R. Ambedkar Konaseema District a call was given by JAC

Konaseema District Sadhana Samithi for submission of

representations. In pursuance of the same thousands of people

gathered at Clock Tower Centre and proceeded to Collectorate

Office. When Police tried to prevent them from entering the

premises said mob pelted stones on the Police and caused

injuries to them. Further the mob also damaged Collectorate

Office as well as Ambedkar Building and also lit fire to buses.

18. As can be seen from the entire record prosecution

identified accused basing on CC TV footage, social media videos

and photos. Further except mentioning the names of accused in

FIR, no specific overt acts were attributed against the petitioner

or any other accused.

19. As pointed out by learned counsel for the petitioner to

attract Section 147 of IPC, there should unlawful assembly. For

better appreciation it is appropriate to extract Section 141 and

147 of IPC.

141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--

(First) -- To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or

(Second) -- To resist the execution of any law, or of any legal process; or

(Third) -- To commit any mischief or criminal trespass, or other offence; or

(Fourth) -- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

(Fifth) -- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

147. Punishment for rioting.--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

20. Thus, there must be unlawful assembly as defined under

Section 141 of IPC for attracting offences under Section 147 of

IPC. In the present case nothing is forthcoming from the record

to show that all the people in the mob had a common intention

of committing an offence.

21. It is also evident from the record that the mob gathered

for submitting their representations at Collectorate office, but

not with an intention of committing any offence and admittedly

the mob was not armed with weapons.

22. A perusal of the complaint lodged by complainant, shows

that the name of petitioner is not reflected. Even as per the

prosecution case, basing on confession made by other accused

regarding the role of petitioner, petitioner was arrayed as

accused in the above crime.

23. In Bullu Das Vs. State of Bihar3, while dealing with the

confessional statements made by the accused persons before a

police officer, the Supreme Court held as under:

"7. The confessional statement, Ex. 5, stated to have been made by the appellant was before the police officer in charge of the Godda Town Police Station where the offence was registered in respect of the murder of Kusum Devi. The FIR was registered at the police station on 8-8-1995 at about 12.30 p.m. On 9-8-1995, it was after the appellant was arrested and brought before Rakesh Kumar that he recorded the confessional statement of the appellant. Surprisingly, no objection was taken by the defence for admitting it in evidence. The trial court also did not consider whether such a confessional statement is admissible in evidence or not. The High Court has also not considered this aspect. The confessional statement was clearly inadmissible as it was made by an accused before a police officer after the investigation had started."

24. Considering the facts of this case, since the name of the

petitioner doesn't find place in compliant, no specific allegations

made against the petitioner and extra judicial confession is weak

piece of evidence and as this Court granted bail to the petitioner

and other accused, who stands on same footing, this Court

deems it appropriate to grant bail to the petitioner by duly taking

(1998) 8 SCC 130

the apprehensions made by the learned Special Assistant Public

Prosecutor into consideration with the following conditions:

i) The petitioner/A-53 in crime No.140 of 2022 of

Amalapuram Town Police Station, East Godavari District is

ordered to be enlarged on bail on execution of self bond for

Rs.50,000/- (Rupees Fifty Thousand only) with two sureties for a

like sum each, to the satisfaction of the learned Additional

Judicial First Class Magistrate, Amalapuram, East Godavari

District.

ii) On release, the petitioner shall appear before the

Station House Officer, Amalapuram Town Police Station, East

Godavari District once in a week i.e. on every Saturday between

9:00 am and 12.00 noon till the date of filing of charge sheet.

iii) Petitioner shall cooperate with the investigation of

the above crime;

iv) Petitioner shall neither influence the witnesses nor

tamper the evidence.

Further, the petitioner shall scrupulously comply with the

above conditions and if there is breach of any of the above

conditions, it will be viewed seriously and it also entails

cancellation of the bail and in such case prosecution shall move

appropriate application for such cancellation.

It is made clear that this order does not, in any manner,

limit or restrict the rights of the Police or the investigating

agency from further investigation as per law and the findings in

this order be construed as expression of opinion only for the

limited purpose of considering bail in the above crime and shall

not have any bearing in any other proceedings.

Accordingly, the Criminal Petition is allowed.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

_______________________ JUSTICE RAVI CHEEMALAPATI

Date : 16.08.2022

Note: C.C. by today.

(B/o.) SPP

THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

CRIMINAL PETITION NO.6326 of 2022

Date : 16.08.2022

Note: C.C. by today.

(B/o.) SPP