Mr.Darla Nagendra Babu Nagendra vs State Of Andhra Pradesh,
2022 Latest Caselaw 5263 AP

      THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

                CRIMINAL PETITION No.6134 OF 2022


ORDER:

This Criminal Petition is filed under Sections 437 & 439 of Criminal

Procedure Code ('Cr.P.C.' in short), seeking regular bail, by the

petitioner/Accused No.257 in Crime No.139 of 2022 of Amalapuram

Town Police Station, East Godavari District, registered for the offences

punishable under Sections 307, 143, 144, 147, 148, 151, 152, 332, 336,

427, 188, 353, 324, 435 read with 149 of IPC, Sections 3 and 4 of

Prevention of Damage to Public Property Act, 1984 and Section 32 of the

Police Act, 1861.

2. The facts of the case, in brief, are 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 for submitting objections pursuant to 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 and glasses of Collectorate Office and Ambedkar

Bhavan were damaged.

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 police personnel and 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 given by the Village Revenue Officer,

Amalapuram, the above crime was registered.

3. Heard Sri Papaiah Peddakula, learned counsel for the petitioner and

Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor for

the respondent-State.

4. Learned Counsel for the petitioner submitted that six crimes were

registered in connection with the incident said to have been occurred on

24.05.2022 at Amalapuram i.e. Crime Nos.138, 139, 140 and 141 of 2022

of Amalapuram Town Police Station and Crime Nos.126 and 127 of

Amalapuram Taluq Police Station.

It is stated that initially petitioner's name was not figured in the

said crime. But, based on the confession statement of one of the arrested

accused, he was implicated and was arrested on 17.06.2022.

It is also stated that the petitioner approached the Sessions Court

by filing Criminal Miscellaneous Petition No.179 of 2022, seeking bail and

the said petition was dismissed on 04.07.2022, on the ground

investigation is still pending.

It is also contended that some of the accused in these crimes and

the other crimes registered in connection with the same incident, were

granted pre-arrest/regular bail and sought to consider the present

petitions also on similar lines, on any conditions that may be imposed.

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

submitted that the petitioner has already approached Sessions Court and

filed bail application and the learned Sessions Judge has dismissed the

said application on the ground that investigation is pending.

It is also submitted that involvement of the petitioner is evident

from the confession statements of the other arrested accused, CC TV

footages, social media videos and photographs taken at the scene of

offence. It is further submitted that investigation is still pending.

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. ....."

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

6. A perusal of the complaint discloses that initially the petitioner's

name was not reflected in the above crime, but, subsequently, he was

implicated based on the confession statement of the one of the arrested

accused.

The contention of the learned counsel for the petitioner is that

petitioner herein is falsely implicated in this crime due to political

differences whereas according to the prosecution, petitioner is active

participant in the rally and he executed illegal acts as per conspiracy of his

leaders.

The learned Public Prosecutor specifically urged that petitioner's

custody is important in this case, since according to the prosecution, he is

active participant in hatching up the plan through whatsapp group and

other social media platform, which resulted in occurrence of large-scale

violence and execution of other related illegal acts as conspired.

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.

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.

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.]

Further, 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 IPC.

Specific overt acts were not attributed against the petitioner.

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. Photographs filed by prosecution do not show that

mob is armed with weapons.

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 petitioner has 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.

7. Taking the facts and circumstances of the case into consideration

and considering the submissions of the learned Counsel for the petitioner

that in similar matters, this Court has granted bail, this Court feels it

appropriate to consider granting bail to the petitioner herein on the

following conditions, duly considering the apprehension of the learned

Special Assistant Public Prosecutor:

(i) The petitioner shall be released on bail on his executing self bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties for a like sum each to the satisfaction of the Additional Judicial Magistrate of First Class, Amalapuram, East Godavari District;

(ii) On release, the petitioner shall appear before the Station House Officer, Amalapuram Town Police Station, East Godavari District, twice in a week i.e. on every Monday and Thursday between 9.00 a.m. and 12.00 noon, till filing of the charge sheet; and

(iii) The petitioner 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.

Further, the petitioner shall scrupulously comply with the above

conditions and in case of infraction of the same, the prosecution is at

liberty to move appropriate application for cancellation of bail.

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 finding in this order be construed as

expression of opinion only for the limited purpose of considering bail in

the above Criminal Petition and shall not have any bearing in any other

proceedings.

Accordingly, the Criminal Petition is allowed.

Miscellaneous applications, pending if any, shall stand closed.

________________________ JUSTICE RAVI CHEEMALAPATI 18th August, 2022 GBS