Andhra Pradesh High Court - Amravati
Shaik Mubaraq, Chittoor Dt Anr., vs The Sho, Mydukur U/G Ps.,Thrstate ... on 4 February, 2022
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
I.A.Nos.04 & 05 of 2021
in
Criminal Appeal No.1219 of 2016
COMMON ORDER: (Per Hon'ble Sri Justice C. Praveen Kumar)
The present applications are filed by the petitioners/A.2
& A.1 respectively, seeking bail on two grounds (i) they have
completed five years of imprisonment from the date of
conviction [17.11.2016] and as such entitled for bail in view
of Batchu Rangarao & others v. State of A.P. 1 and (ii)
there is no legal evidence to connect the petitioners/A.1 and
A.2 with the crime.
2. As seen from the record, A.1 to A.3 were tried for the
offences punishable under Section 364-A and 364-A r/w.
Section 34 IPC. A.1 was convicted under Section 364-A IPC
and sentenced to suffer Imprisonment for Life and to pay a
fine of Rs.1000/-, in default to suffer Simple Imprisonment
for one month. A.2 and A.3 were convicted for the offence
punishable under Section 364-A r/w.Section 34 IPC and
sentenced to suffer Imprisonment for Life and to pay a fine of
Rs.1000/-, in default to suffer Simple Imprisonment for one
month each.
1
2016 (3) ALT (Crl.) 505 (DB) (A.P).
2
CPK, J & RNT, J
I.A.Nos.04 & 05 of 2021 in
Crl.A.No.1219 of 2016
3. Challenging the said conviction imposed in Sessions
Case No.13 of 2014 on the file of the II Additional Sessions
Judge, Kadapa at Proddatur, the present Crl.A.No.1219 of
2016 came to be filed by the petitioners/A.1 and A.2.
Pending appeal, the present applications came to be filed
seeking bail on the two grounds, stated supra.
4. Before dealing with the same, it would be appropriate to
refer to the facts in issue, which are as under:-
(i) On 09.04.2013 at about 5.30 AM, P.W.1 came to
Police Station and lodged a report stating that his son P.W.2
who was studying 6th class in AVR E-Techno School,
Mydukur left the house to go to school, at 12.30 PM on
08.04.2013 but did not return home. At about 2.00 PM
when P.W.1 returned home, he noticed the school bag infront
of his house. At that time one unknown person telephoned to
him stating that his son is with him and demanded to pay
ransom of Rs.12,00,000/- for his release. The call was from
Mobile No.8125948955. At about 3.45 PM, his son called
P.W.1 and informed him that he was at Gangayapalli Village
and that some person brought him from Kesilingayapalli to
Gangayapalli saying that P.W.1 is at Gangayapalli for
purchase of turmeric and that he was escaped from that
person. P.W.1 went to said place and brought his son. On
09.04.2013 at about 6.00 A.M, the present report came to be
lodged.
3
CPK, J & RNT, J
I.A.Nos.04 & 05 of 2021 in
Crl.A.No.1219 of 2016
(ii) In support of its case, the prosecution examined
P.Ws.1 to 8 and got marked Exs.P1 to P18. After considering
the entire evidence available on record, the trial Court held
that all the three accused shared a common intention to
commit kidnap of P.W.2 and demand money for his release,
from P.W.1. A perusal of the evidence of P.W.2, who is the
victim in this case, would show that A.1 who took P.W.2 from
the house, at the instance of A.3. While they were taking the
victim to another place, A.2 joined A.1 at Pullaiah Satram
while A.3 monitored the movements over phone. The
material on record also would prima-facie show that A.1 and
A.3 discussed and planned to kidnap P.W.2 with the help of
another person, which they were successful in doing so. In
view of the material available on record, the trial Court
convicted the accused.
5. In so far as the merits of the case are concerned,
learned counsel for the petitioners/A.1 and A.2 took us
through Section 164 Cr.P.C. statement of P.W.2, which is
placed on record under Ex.P2, to show that no offence is
made out.
6. Sri S. Dushyanth Reddy, learned Additional Public
Prosecutor, opposed the bail applications, contending that it
is a grave offence where the petitioners kidnapped a minor
children and demanded a huge amount for his release, from
4
CPK, J & RNT, J
I.A.Nos.04 & 05 of 2021 in
Crl.A.No.1219 of 2016
P.W.1. Apart from that he contended that the applications of
the petitioners were already rejected twice by this Court, and
as such, they are not entitled for any bail.
7. It is to be noted here that pending appeal before this
Court, the petitioners/A.1 and A.2 herein filed
Crl.A.M.P.No.2157 of 2016. After arguing the matter for some
time, the counsel withdrew the bail application with a liberty
to file a fresh application after expiry of six months from
today. Recording the same, the said application was
dismissed on 02.01.2017. Thereafter, both the petitioners
again moved another bail application vide Crl.A.M.P.No.1466
of 2017. By an order, dated 10.07.2017, a Bench of this
Court dismissed the application in the light of the evidence of
P.Ws.1 and 2. It would be appropriate to extract the docket
order, dated 10.07.2017, which is as under:-
Crl.A.M.P.No.1466 of 2017
"This is the second application filed for grant of bail by
the applicants/appellants/accused Nos.1 and 2 in Sessions
Case No.13 of 2014 on the file of II Additional Sessions Judge,
Kadapa at Proddatur.
Though the applicants were convicted for the offence
punishable under Section 364-A I.P.C. and, inter alia, sentenced
to suffer rigorous imprisonment for life, Mr.G. Rama Sharma,
learned counsel for the applicants, has submitted that the
offence allegedly committed by the applicants does not satisfy
the ingredients of Section 364-A I.P.C. We are not convinced
with this submission.
In the light of the evidence of P.Ws.1 and 2 and the
categorical findings recorded by the Court below, it cannot be
5
CPK, J & RNT, J
I.A.Nos.04 & 05 of 2021 in
Crl.A.No.1219 of 2016
said that the charges against the applicants do not satisfy the
ingredients of Section 364-A I.P.C.
Hence, this application is dismissed."
8. Before proceeding further, it would be appropriate to
refer to the judgment of Division Bench of this Court in
Batchu Rangarao's case [cited 1 supra], which reads as
under:
(3) In the following categories of cases, the convicts will
not be entitled to be released on bail, despite their satisfying the
criteria in (1) and (2) supra:
The offences relating to rape coupled with murder of minor
children, dacoity, murder for gain, kidnapping for ransom,
killing of the public servants, the offences falling under the
National Security Act and the offences pertaining to narcotic
drugs.
(4) While granting bail, the two following conditions apart
from usual conditions have to be imposed, viz., (1) the
appellants on bail must be present before the Court at the time
of hearing of the Criminal Appeals; and (2) they must report in
the respective Police Stations once in a month during the bail
period.
This broad criteria cannot be understood as invariable
principles and the Bench hearing the bail applications may
exercise its discretion either for granting or rejecting the bail
based on the facts of each case. Needless to observe that grant
of bail based on these principles shall, however, be subject to
the provisions of Section-389 of the Code of Criminal Procedure."
9. A reading of the above judgment, nodoubt disclose that,
if the case of the accused does not fall within the exceptions
carved out in the said judgment, the petitioners can be
released on bail on a certain terms and conditions. But, at
6
CPK, J & RNT, J
I.A.Nos.04 & 05 of 2021 in
Crl.A.No.1219 of 2016
the same time, the judgment categorically states that the
Court has the discretion to deal with the bail application and
decide as to whether it is a case to grant bail or not.
10. Keeping in view the aforementioned principles, we shall
now proceed to deal with the case on hand. As seen from the
record, the petitioners moved this Court seeking bail on
number of occasion and the Court dismissed the bail
applications of the petitioners on merits on 02.01.2017 and
10.07.2017. That being the position, the question of
granting bail to the petitioners on merits would not arise. As
stated earlier, the petitioners are charged with offences
punishable under Sections 364-A and 364-A r/w. Section 34
IPC. In the absence of any changed circumstances, the
request of the petitioners seeking bail cannot be accepted.
Further, the statement under Section 164 Cr.P.C which is
sought to be relied upon is not a substantive piece of
evidence and it can be used only to contradict the maker.
11. Coming to the applicability of Batchu Rangarao, it is to
be noted that it is not a mandatory rule of law that wherever
the accused completes five years of imprisonment from the
date of conviction, he has to be released on bail. Infact as
observed by earlier, discretion is left to the Court to consider
each case on its own merits while dealing with the bail
application.
7
CPK, J & RNT, J
I.A.Nos.04 & 05 of 2021 in
Crl.A.No.1219 of 2016
12. The hearing of a bail application pending disposal of the
appeal amounts to hearing of the appeal itself and the
practice of hearing a bail application was commented upon
by the Hon‟ble Supreme Court in Kashmira Singh v. The
State of Punjab2 case and also in Preet Pal Singh v. State
of Uttar Pradesh and Another3.
13. In Preet Pal Singh's case, [cited 3rd supra], the Hon‟ble
Supreme Court in paragraph no. 24 framed an issue as to
whether "the High Court was justified in directing release of
the Respondent No.2 on bail, during the pendency of his
appeal before the High Court". In para 26 of the said
judgment, the court held as under:
"As the discretion under Section 389(1) is to be
exercised judicially, the Appellate Court is obliged to
consider whether any cogent ground has been
disclosed, giving rise to substantial doubts about the
validity of the conviction and whether there is likelihood
of unreasonable delay in disposal of the appeal, as held
by this Court in Kashmira Singh v. State of
Punjab and Babu Singh and Ors. v. State of U.P."
In paragraph 35, the Hon‟ble Supreme Court held as under:
"There is a difference between grant of bail under Section
439 of the CrPC in case of pre-trial arrest and suspension
of sentence under Section 389 of the CrPC and grant of
bail, post conviction. In the earlier case there may be
presumption of innocence, which is a fundamental
postulate of criminal jurisprudence, and the courts may
be liberal, depending on the facts and circumstances of
2 (1977) 4 SCC 291
3 (2020) 7 Supreme Court Cases 645
CPK, J & RNT, J
I.A.Nos.04 & 05 of 2021 in
Crl.A.No.1219 of 2016
the case, on the principle that bail is the rule and jail is
an exception, as held by this Court in Dataram Singh v.
State of U.P. and Anr4. However, in case of post
conviction bail, by suspension of operation of the
sentence, there is a finding of guilt and the question of
presumption of innocence does not arise. Nor is the
principle of bail being the rule and jail an exception
attracted, once there is conviction upon trial. Rather, the
Court considering an application for suspension of
sentence and grant of bail, is to consider the prima facie
merits of the appeal, coupled with other factors. There
should be strong compelling reasons for grant of bail,
notwithstanding an order of conviction, by suspension of
sentence, and this strong and compelling reason must be
recorded in the order granting bail, as mandated in
Section 389(1) of the Cr.P.C."
Similarly, in paragraph no. 38 and 40, the Hon‟ble Supreme
Court held as under:
"38. In considering an application for suspension of
sentence, the Appellate Court is only to examine if there is
such patent infirmity in the order of conviction that
renders the order of conviction prima facie erroneous.
Where there is evidence that has been considered by the
Trial Court, it is not open to a Court considering
application under Section 389 to re-assess and/or re-
analyze the same evidence and take a different view, to
suspend the execution of the sentence and release the
convict on bail.
40. It is difficult to appreciate how the High Court could
casually have suspended the execution of the sentence
and granted bail to the Respondent No.2 without
recording any reasons, with the casual observation of
force in the argument made on behalf of the Appellant
before the High Court, that is, the Respondent No.2
herein. In effect, at the stage of an application
under Section 389 of the CrPC, the High Court found
(2018) 3 SCC 22
CPK, J & RNT, J
I.A.Nos.04 & 05 of 2021 in
Crl.A.No.1219 of 2016
merit in the submission that the brother of the victim not
having been examined, the contention of the Respondent
No.2, being the Appellant before the High Court, that the
amount of Rs.2,50,000/- was taken as a loan was not
refuted, ignoring the evidence relied upon by the Sessions
Court, including the oral evidence of the victim's parents."
14. Having regard to the judgments referred to above, and
since the application of the petitioners was rejected twice on
merits by this Court and in the absence of any changed
circumstance, the request of the petitioners for grant of bail
cannot be considered.
15. Accordingly, the bail applications are dismissed. Since
the booklet is ready, as there is no death in this case, the
Registry shall post this Criminal Appeal under the caption „for
final hearing‟, after 10 days in seriatim.
Consequently, miscellaneous petitions, if any, pending
shall stand closed.
_______________________________
JUSTICE C. PRAVEEN KUMAR
_______________________________
JUSTICE RAVI NATH TILHARI
Date: 04.02.2022.
MS
CPK, J & RNT, J
I.A.Nos.04 & 05 of 2021 in
Crl.A.No.1219 of 2016
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
I.A.Nos.04 & 05 of 2021
in
Criminal Appeal No.1219 of 2016
(Per Hon'ble Sri Justice C. Praveen Kumar)
Date: 04.02.2022
MS
