Andhra Pradesh High Court - Amravati

439 Of The Code Of Criminal ... vs Unknown on 30 August, 2022

     THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
     CRIMINAL PETITION Nos.6473, 6504, 6505 AND 6511
                            OF 2022

COMMON ORDER:

       These Criminal Petitions are filed under Section 437 and

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

to enlarge the petitioner on bail in connection with crime

Nos.126, 127 and 140 of 2022 of Amalapuram Tq Police Station

and Crime No. 138 of 2022 of Amalapuram Town Police Station,

East Godavari District.


2.     The petitioner is arrayed as A-68, A-69, A-65 and A-65

respectively in the above crimes.


3.     Crime No.126 of 2022 is registered for the offences

punishable under Sections 143, 144, 147, 148, 151, 152, 155,

452, 436, 353, 332, 427, 188, 307 read with 149 of the Indian

Penal Code, 1860 (for short 'IPC'), Sections 3 and 4 of Prevention

of Damage to Public Property Act, 1984 (for short 'PDPP Act')

and Sections 3(2)(v), 3(2)(va) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Amendment Act,

2015 (01/2016) (for short SCs&STs(POA) Act').


4.     Crime No.138 of 2022 is registered for the offences

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

332, 336, 427, 188, 353 read with 149 of IPC, Sections 3 and 4

of PDPP Act and Section 32 of Police Act, 1861.


5.     Crime No.127 of 2022 is registered for the offences

punishable under Sections 143, 144, 147, 148, 452, 151, 436,

307 read with 149 of IPC, Section 32 of A.P.Police Act, 1861 and
                                  2

Sections 3(2)(v) and 3(2)(va) of SCs&STs (POA) Amendment Act,

2015 (01/2016).


6.   Crime No.140 of 2022 is registered for the offences

punishable under Sections 341, 143, 144, 147, 148, 151, 336,

435, 188 read with 149 of IPC, Sections 3 and 4 of PDPP Act

and Section 32 of A.P.Police Act, 1861.


7.   Basing on the complaint lodged by the Sub-Inspector of

Police, Crime No.126 of 2022, basing on the complaint lodged

by Home Guard, Crime No.138 of 2022, basing on the

complaint lodged by the watchman of the house of the

Minister, Crime No.127 of 2022 and basing on the complaint

lodged by Driver, APSRTC, Crime No.140 of 2022 was

registered.


8.   The facts of above crime are inter-linked. Therefore, they

are considered and decided by this common order.


     The facts of the case in brief are:


9.   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 came from four corners to the clock tower

centre and formed into a huge mob.
                                     3

      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.


      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.


      Thereafter, the mob proceeded to Red Bridge (Erra

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

fire to the buses.


      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.


      The petitioner is arrayed as one of the accused in the

above crimes basing on the complaints lodged by respective

persons referred to supra.

10.   Heard Sri P.Srinivasulu, learned counsel for the

petitioner and Sri Soora Venkata Sainath, learned Special

Assistant Public Prosecutor for the respondent-State.

11. Though notice is required to be served on the victim as per

the Scheduled Castes and the Scheduled Tribes (POA)

Amendment Act, 2015, since notice on the same victim was

served in other Criminal Petitions with regard to Crime Nos.126

and 127 of 2022 as well as in other crimes, arisen out of the

same incident, no prejudice would be caused to the victim, if no

notice is served in these Criminal Petitions.

12. 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.

13. It is further contended that initially the petitioner's

name was not figured in the complaint. Basing on the CC

TV footages and call date, his name was arrayed as accused

in the present crime. It is also contended that some of the

accused in other crimes registered in connection with the

same incident were granted regular as well as anticipatory

bails. It is also contended that the petitioner is accused in

other crimes too and the police arrested the petitioner on

28.05.2022 and he is ready to abide any conditions that

may be imposed by this Court.

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

Prosecutor submitted that the petitioner has already

approached Sessions Court and filed bail applications and the

learned Sessions Judge has dismissed the said applications

on the ground that investigation is pending.

15. It is also submitted that involvement of the petitioner

is evident from the CC TV footages, social media videos and

photographs taken at the scene of offence. It is further

submitted that investigation is still pending.

16. 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 "

17. 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 CC TV

footage and call data.

18. 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.

19. The learned Public Prosecutor specifically urged that

petitioner's custody is important in this case, since

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

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.

20. 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.

21. 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.

22. 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.]

23. 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.

24. 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.

25. A perusal of the complaints lodged by respective

complainants, shows that name of the 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.

26. In Bullu Das Vs. State of Bihar2, 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."

(1998) 8 SCC 130

27. 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.

28. 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:

1) 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 Chief Judicial Magistrate of First Class, Amalapuram, East Godavari District in each crime;

2) On release, the petitioner shall appear before the Station House Officer, Amalapuram Talue/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

3) 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 Petitions are allowed.