Adapa Shiva Sankara Vara Prasad ... vs The State Of Andhra Pradesh,
2022 Latest Caselaw 5200 AP

     THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

      CRIMINAL PETITION Nos.5912 and 5914 OF 2022

COMMON ORDER:

        These Criminal Petitions are filed under Sections 438 of

Criminal Procedure Code ('Cr.P.C.' in short), seeking pre-arrest

bail, by the petitioners/Accused in the following crimes:

        Crime No.127 of 2022 dated 24.05.2022 of Amalapuram

Taluq    Police   Station,   Amalapuram,   East   Godavari   District,

registered for the offences punishable under Sections 143, 144,

147, 148, 151, 452, 436, 307 r/w. 149 of IPC, Section 32 of

Police Act, 1861 and Section 3 (2) (v), 3 (2) (va) of The

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act Amendment Act, 2015 (01/2016).

        Crime No.126 of 2022 dated 24.05.2022 of Amalapuram

Taluq    Police   Station,   Amalapuram,   East   Godavari   District,

registered for the offences punishable under Sections 143, 144,

147, 148, 151, 152, 155, 452, 436, 353, 332, 427, 188, 307

r/w. 149 of IPC, Sections 3 and 4 of Prevention of Damage to

Public Property Act, 1984 and Section 3 (2) (v), 3 (2) (va) of The

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act Amendment Act 2015 (01/2016).

2.      Since the petitioners/Accused are one and the same and

the above crimes were registered in relation to Konaseema

agitation, they are being disposed of by this common order.

3.      The facts of the case, in brief, are that on 24.05.2022 on a

call given by JAC of Konaseema Sadhana Committee, huge

number of people gathered for submitting objections pursuant to
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issuance of Gazette notification with regard to change of name of

Konaseema District, by violating the order 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

came from four corners to the clock tower centre and formed

into a huge mob.

      Thereafter the mob moved to Collectorate and on the way

to Collectorate, when Police were discharging their duties, the

mob pelted stones on the Police and also burnt BVC college bus

which was used as transport vehicle for Police.

      Further, when the 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.

      Thereafter, the mob proceeded to Red Bridge (Erra

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

fire to the buses.

      The mob further moved towards the house of Hon'ble

Minister.   When the mob shouted and beat police persons, AR

constable fired rounds in air, but agitators attacked complainant

and his staff; attacked staff of the Hon'ble Minister, caused

damage to the furniture and set fire to the house of the Minister

and later proceeded to the house of local MLA.    Basing on the

complaint lodged by the watchman of the house of the Minister,

Crime No.127 of 2022 was registered and basing on the
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complaint lodged by the Sub-Inspector of Police Crime No.126 of

2022 was registered.

4.    Learned Special Public Prosecutor submitted that he served

a notice to the victims under section 15A(3)(5) of Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act,

2015, Act No.1 of 2016 and proof of service also placed on

record.

5.    Heard Sri T.V.Jaggi Reddy, learned Counsel for the

petitioners and Sri Soora Venkata Sainath, learned Special

Assistant Public Prosecutor for the respondent-State.

6. Learned counsel for the petitioners, in elaboration to what

has been raised in the grounds, contended that initially the

petitioners names were not figured in the complaint. Basing on

the confession statements of the other accused, their names

were arrayed as accused in this crime. It is also contended that

the other accused in the present crimes and other crimes

registered in connection with the same incident were granted

anticipatory bail and sought to consider the present petition.

5. On the other hand, the learned Special Assistant Public

Prosecutor submitted that the involvement of the petitioners is

evident from the photographs taken at the scene of offence and

investigation is still pending. If at all this Court wants to consider

the present bail petitions, in such case, he draw the attention of

the Court to the decision of the Hon'ble Supreme Court in

Kodungallu Film Society v. Union of India1 wherein it is held

as follows:

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. ....."

Relying on the judgment cited supra, the learned Special

Assistant Public Prosecutor, prayed this Court to impose some

costs for the loss caused to the State.

6. Learned Special Assistant Public Prosecutor further

submits 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 crimes. He submits that investigation is

pending and offences are serious in nature and hence

petitioner is not entitled to pre-arrest bail.

7. I have given my anxious consideration to the submission

made on either side and perused the record.

8. 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

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

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

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;

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."

9. 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.

10. 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.

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

attract Sections 146 and 147 of IPC, there should unlawful

assembly. For better appreciation it is appropriate to extract

Sections 141, 146 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.

146. Rioting.--Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

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.

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

Section 141 of IPC for attracting offences under Sections 146

and 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.

13. The other contention raised by learned Public Prosecutor

is regarding applicability of Section 307 of IPC. Section 307 of

IPC reads thus:

307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.--

2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.]

14. In the present case, admittedly the mob consists of

more than 1000 people. None of the complaints indicate about

common intention or common object of committing an offence

punishable under Section 307 of IPC. Specific overt acts were

not attributed against the petitioner.

15. 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.

16. A perusal of the complaints lodged by respective

complainants, 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

crimes.

17. 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."

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

petitioner doesn't find place in compliant, no specific overt act

was attributed against the petitioner and extra judicial

confession is weak piece of evidence, this Court deems it

appropriate to grant pre-arrest bail to the petitioner with

certain conditions.

(1998) 8 SCC 130

19. A perusal of the complaint discloses that initially, the

petitioners' names were not reflected, but as per the confession

statements of the other accused, the petitioners' names are

reflected in the above crime.

20. 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.

21. Taking the facts and circumstances of the case into

consideration and considering the submissions of both the

learned Counsel and in similar matters this Court has granted

pre-arrest bail, this Court feels it appropriate to consider

granting pre-arrest bail to the petitioners herein on the following

conditions, by duly taking the apprehension raised by the Special

Assistant Public Prosecutor into consideration:

(i) The petitioners shall be released on bail on their executing

self bond for Rs. 50,000/- (Rupees fifty thousand only) each with

two sureties each for a likesum each in each crime to the

satisfaction of the Station House Officer, Amalapuram Taluq

Police station, Amalapuram, East Godavari District, in the event

of their arrest in connection with Crime Nos.127 & 126 of 2022

of Amalapuram Taluq Police Station;

(ii) On such release, the petitioners shall appear before the

Station House Officer, Amalapuram Taluq Police Station once in a

week i.e. on every Saturday between 9.00 a.m. and 06.00 pm

for a period of eight weeks or till the date of filing of the charge

sheet, whichever is earlier;

(iii) The petitioners shall not directly or indirectly contact the

complainant or any other witnesses under any circumstances

and any such attempt shall be construed as an attempt of

influencing the witnesses and shall not tamper the evidence and

shall co-operate with the investigation.

(iv) The petitioners shall not leave the limits of police station

without intimating to the police till filing of charge sheet.

Further, the petitioners shall scrupulously comply with the

above conditions and any infraction of the same will be viewed

seriously and bail automatically gets cancelled without any

further order of this Court.

Accordingly, the Criminal Petition is allowed.

Miscellaneous applications, pending if any, shall stand

closed.

________________________ JUSTICE RAVI CHEEMALAPATI 17th August, 2022 AG

THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI

CRIMINAL PETITION NOs.5912 & 5914 OF 2022

Date : 17.08.2022

AG