THURSDAY, THE SIXTH DAY OF JANUARY, TWO THOUSAND AND TWENTY Two * Ney ' " > PRESENT : THE HONOURABLE SRI JUSTICE D. RAMESH CRL.P.No. 7293 of 2021 Between :- Jalagam Venkata Satyanarayana, S/o. J. Subbarao, aged 68 years, R/o. Plot No. B-188, Flat No 101, Apurupa Colony, IDA-Jeedimetla, Hyderabad. sees Petitioner/Accused No.8 AND The State of Andhra Pradesh, Rep. by its Public Prosecutor, Through Deputy Superintendent of Police CBI/ACB/Visakhapatnam. seeee Respondent. Petition filed under Sections 437 and 439 of Cr.P.C. praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to release the Petitioner/Accused No. 8 on bail in RC 15(S)/2020 (RCO3262020S0015)/CBI/ACB/Visakhapatnam) on the file of the CBI, ACB, Visakhapatnam. The petition coming on for hearing, upon perusing the memorandum of grounds filed in support thereof and upon hearing the arguments of Sri P. Veera Reddy, learned Senior Counsel appearing for Sri M. Vidyasagar, Advocate for the Petitioner and of Sri P. Chennakesavulu, Special Public Prosecutor for CBI Cases, the Court made the following ORDER :- THE HONOURABLE SRI JUSTICE D.RAMESH CRIMINAL PETITION No.7293 of 2021 ORDER:
This is the successive criminal petition filed by the petitioner/A8 under section 437 and 439 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C") seeking to release the petitioner/A8 on bail in RC 15(8)/2020 (RCO03262020S0015)/CBI/ACB/ Visakhapatnam) on the file of the CBI, ACB, Visakhapatnam. The offences against the petitioner are under Section 153-A, 504, 505(2), 506 of the Indian Penal Code, (for short IPC) and Sec.67 of Information Technology Act, 2000.
2. As per the averments.in the petition, the then Registrar General of the High Court of Andhra Pradesh has lodged a complaint dated 26.5.2020 against the petitioner and certain others alleging about posting of certain comments against the Hon'ble Judges of High Court thereby trying to scandalize and lower the image of the High Court and Hon'ble Judges. Initially F.I.R.No.27 of 2020 was registered against this petitioner on the file of Crime Investigation Department police station where under the petitioner was charged with offences under Sections 905(2) and 153-A of IPC. Through order dated 12.10.2021 in Writ Petition No.9166 of 2020, the High Court has directed transfer of the above said F.I.R to Central Bureau of Investigation for investigation. | Thus RC 15(8)/2020 (RCO3262020S0015)/CBI/ACB/Visakhapatnam) has been registered against the petitioner.
3. Pursuant to the registration of F.I.R.No.27/2020, the CID police have issued notices on 15.6.2020 and 25.6.2020 calling upon the petitioner to appear before them in connection with the said crime and
accordingly, the petitioner has appeared on 30.11.2020. As per the
remand report Samsung phone allegedly belonging to the petitioner was seized and the postings in the facebook were retrieved. On 30.11.2020, the petitioner was examined by the Central Bureau of Investigation (for short C.B.I.) at its camp office at Vijayawada before the independent witnesses. The petitioner was arrested on 21.10.2021.
4. Sri P.Veera Reddy, learned senior counsel appearing on behalf of the petitioner has submitted that though this Court has considered and dismissed the bail application on 30.11.2021 on merits filed by the petitioner. But during the pendency of the said criminal petition, the respondents have filed charge sheet. But the same was not brought to the notice of this Court. Only after disposal of the first bail application, the said fact was came to the notice of the petitioner. Hence the present applications are filed. Inview of the observations of the Hon'ble Apex Court in the changed circumstances, the 2"4¢ bail applications are maintainable. The earlier applications filed by the petitioner was considered and dismissed by this court on' 30.11.2021 by stating that having considered the contentions of the parties and severity of the allegations and considering the fact that some of the accused are yet to arrest and the entire investigation is not yet completed, this Court is not satisfied for the purpose of grant of bail to the petitioner.
5. Learned senior counsel further argued that in view of not completing the investigation, the earlier bail application was dismissed. But on facts as on today the investigation is completed and they have filed charge sheet in the instant case. So in view of the said
circumstances, there is no necessity to languish the petitioner in jail as
observed by the Hon'ble Apex Court in State of Rajasthan us. Balchand! the rule of criminal justice system is bail not jail.
6. Learned senior counsel further submitted that the petitioner was arrested on 21.10.2021 and as of now he was languished in bail for more than 60 days, hence he is entitled for default bail. To support his contentions he has relied on the judgment of Hon'ble Apex Court in between Ranjitsingh Brahmajeetsing Sharma vs. State of
Maharashtra & Another? wherein it is recited that:
Thus, in order to constitute abetment, the abettor must be shown to have intentionally aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged a better is not enough compliance with the requirements of s.107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of s.107."
Another citation of the Hon'ble Supreme Court in between Rakesh Kumar Paul vs. State of Assam? wherein it is recited that:
On 11 January, 2017 when the High Court dismissed the application for bail filed by the petitioner, he had an indefeasible right to the grant of 'default bail' since the statutory period of 60 days for filing a charge sheet had expired, no charge sheet or challan had been filed against him (it was filed only on 24% January, 2017) and the petitioner had orally applied for 'default bail'. Under these circumstances, the only course open to the High Court on 11 January, 2017 was to enquire from the petitioner whether he was prepared to furnish bail and if so then to grant him 'default bail' on reasonable conditions. Unfortunately, this was completely overlooked by the High Court."
1 1977(4) SCC 308 2 2005(5) SCC 294 39017(15) SCC 67
Another citation of the Hon'ble Supreme Court reported in between
Sanjay Chandra vs. Central Bureau of Investigation? wherein it is
recited that:
7.
In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when-called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that. any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment asa lesson.
On the other hand the C.B.I filed counter on 22.12.2021 stating
that the petitioner commented through comments in his facebook
account expressing his anger against the judgments given by the Hon'ble
Judges of the High Court of Andhra Pradesh which attracts the penal
offences. The said petitioner has posted 8 numbers of defamatory posts
in Telugu language in his facebook account as per the above case of CID
through his Samsung duo phone-SMG313HU, model name-DIHO, IMEI
number 358008060590727 and sim card number 9491634657 which
was used for said postings was seized from the petitioner in.the presence
of mediators on 15.6.2020, packed it properly in sealed cover and affixed
* 2012 (127) DRJ 418 (SC)
panch slips duly signed by the mediators. Investigation revealed that as per the BSNL customer application form of the said mobile number reveals that it is in the name of accused/petitioner. The independent witnesses were examined and they confirmed facts mentioned in the proceedings dated 30.11.2020 drawn at CBI camp office, Vijayawada, in connection with investigation of RC 15(S)/2020 CBI/ACB/VSKP and stated about viewing and downloading digital content of online posts from facebook that were posted by the petitioner. They also stated that in their presence he was shown the defamatory posting enclosed with the complaint dated 24.5.2020 lodged by Sri B.Rajasekhar, Registrar General, of High Court of Andhra Pradesh in FIR No.27/2020 of CID, AP, Mangalagiri and petitioner admitted in their presence that he posted the same through his facebook account and through his Samsung dual mobile phone with phone number 949 1634657.
8. It is further submitted that in this case six more charge sheets including the petitioner have been filed in the Court of the IV Additional Junior Civil Judge, Guntur on 08.11.2021 by keeping the investigation open as per the provisions of section 173(8) of Cr.P.C.
i. CS No.08/2021 dated 08.11.2021 against accused Sridhar Reddy Avuthu for the offences u/s. 153-A, 504, 505(2) and 506 of IPC and section 67 of the Information Technology Act, 2000.
il. CS No.09/2021 dated 08.11.2021 against the Jalagam Venkata Satyanarayana herein for the offences u/s. 153-A,
. 504, 505(2) and 506 of IPC.
iii. CS No.10/2021 dated 08.11.2011 against one Guda Sridhar Reddy for the offences u/s.504, 505(2) and 506 of IPC.
iv. CS No.11/2021 dated 08.11.2021 against accused Srinath Suswaram for the offences u/s. 153-A, 504, 505(2) and 506 of IPC.
V. CS No.12/2021 dated 08.11.2021 against accused Darisa Kishore Kumar @ Kishore Reddy Darisa for offences u/s. 153-A, 504, 505(2) and 506 of IPC and section 67 of the Information Technology Act, 2000.
vi. CS No.13/2021 dated 08.11.2021 against accused Sudduluri Ajay Amruth @ Gowthami K for offences u/s.504, 505(2) of IPC.
9. On behalf of State Sri S.Raju, Assistant Solicitor General appeared on behalf of respondent/CBI and he mainly contended that the petition itself is not maintainable. Previous bail applications filed by the petitioner was considered on merits and dismissed on 30.11.2021 with an elaborate order. Without assailing the said orders in appellate form, the petitioner is not entitled to file the second/successive bail applications within 15 days is not maintainable as per various rulings of the Apex Court. He further contended that there are no changed circumstances as on the date of disposal of the previous bail applications and today. Even the date of dismissal of the bail application on 30.11.2021, the respondents have completed their investigation and filed charge sheet on 08.11.2021 itself. Hence there are no changed circumstances from the date of rejection of the bail application i.e. 30.11.2021 and the date of filing of this application i.e. 15.12.2021. Without going into the merits of the case, the learned Assistant Solicitor General has emphasised his arguments that the Hon'ble Supreme Court has categorically considered that when there are no changed circumstances, the successive bail application is nothing but review of the earlier application which cannot be maintainable. Learned Assistant Solicitor General has relied on the judgment of the Hon'ble Supreme Court in between State of Tamilnadu vs. S.A.Raja5 wherein it is
recited that:
When a learned Single Judge of the same Court had denied bail to the respondent for certain reasons and that order was unsuccessfully challenged before the appellate forurn, without there being any major change of circumstances, another fresh application should not have been dealt with within a short span of time unless there were valid grounds giving. rise to a tenable case for bail. Of course, the principles of res judicata are not applicable to bail applications, but the repeated filing of the bail applications without
°2006(1)ALD Crl. 220
there being any change of circumstances would lead to bad precedents.
Another citation of the Hon'ble Supreme Court reported in
between State of M.P vs. Kajad® wherein it is recited that:
It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. case No. 2052 of 2000 on 5.6.2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa & Anr. and various other judgments.
Another citation of the High Court of Orissa at Cuttack reported in between Basanta Panda vs. State of Odisha'7 wherein it is recited that:
In the case of Kalyan Chandra Sarkar (wupra), Hon'ble Supreme Court held as follows:
"Before concluding, we must note though an accused has a right to make successive: applications for grant of bail, the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications." In the case of Jogia @ Jogendra Jena, I have held as follows: "Successive bail applications are maintainable but there has to be material change in the fact situation and not mere cosmetic change. Successive bail applications on the same grounds which were available to the accused at the time of consideration of the earlier bail application would not be maintainable. Neither a ground that the earlier bail application was not properly placed by the previously engaged counsel can be entertained." Thus it is the settled position of law that successive bail applications are permissible under the changed circumstances. The change of circumstances must be substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order which is not permissible under criminal law. While entertaining such subsequent bail applications, the Court has a duty to consider the reasons and grounds on which the earlier bail application was rejected and what are the fresh grounds which persuade it warranting the evaluation and consideration of the bail application afresh and to take a view different from the one taken in the earlier application. There must be change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which the application for bail of an accused that has been rejected earlier can be reconsidered. If a bail application is rejected considering some
§ (2001) 7 Supreme Court Cases 673 7 Manw/OR/0286/2021
grounds urged by the counsel for the accused and on the self same materials and without any change in the circumstances, the successive bail application is moved taking some other grounds and the Court is asked to reconsider the prayer of bail, it would be an endless exercise for the Court and entertaining such application would be a sheer wastage of valuable time of the Court".
Another citation of the Hon'ble Apex Court in between
Virupakshappa Gouda and another vs. State of Karnataka and
another® wherein it is recited that:
10.
On 4 perusal of the order passed by the learned trial Judge, we find that he has been swayed by the factum that when a charge-sheet is filed it amounts to change of circumstance. Needless to say, filing of the charge-sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge-sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge-sheet for trial of the accused persons. As is further demonstrable, the learned trial Judge has remained absolutely oblivious of the fact that the appellants had moved the special leave petition before this Court for grant of bail and the same was not entertained. Be it noted, the second bail application was filed before the Principal Sessions Judge after filing of the charge- sheet which was challenged in the High Court and that had travelled to this Court. These facts, unfortunately, have not been taken note of by the learned trial Judge. He has been swayed by the observations made in Siddharam Satlingappa Mhetre (supra), especially in paragraph 86, the relevant part of which reads thus: -
"The courts considering the bail application should try to maintain fine balance between the societal interest vis-a-vis personal liberty while adhering to the .fundamental principle of criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the competent court."
Without going into the merits of the case, he has contended that
though the petitioner has filed successive bail application but it should
be entertained by the Court only on the ground of changed
circumstances.
11.
Here the learned senior counsel appearing on behalf of the CBI has
submitted that the investigation is completed and charge sheet is filed as
per the observations of the Hon'ble Supreme Court in between
Virupakshappa Gouda and another vs. State of Karnataka and
another. It clearly discloses that filing of charge sheet does not amount
* (2017) 5 Supreme Court Cases 406
to changed circumstance. Further as contended that the petitioner is not entitled for default bail because the present applications are not filed under section 167(2) Cr.P.C. The applications are filed only under section 437 and 439 Cr.P.C. Hence they have no right to sought for default bail. But fact remains in the instant case is that the authorities have filed the charge sheet within the stipulated period. Hence the question of considering the petitioner on the ground of default bail would not arise. Further learned senior counsel has contended that if the petitioner has released on bail he will come out and made postings in the other names because some of the accused are habituated to that type of offences. Hence requested to dismiss the bail application and "the petitioner should be jailed till completion of trial.
12. Considering the submissions made by both the counsel no doubt, this Court has dismissed the application on merits on 30.11.2021 filed by the petitioner. But during the pendency of the said application, the investigation is completed and the respondents have filed charge sheet and the same was not brought to the notice of the Court. No doubt as per the observations made by the Apex Court way back in the year 1977 that the rule of criminal justice system is bail not jail is being following as on today. In the instant case, though the petitioner has participated and made postings against the institution, but fact remains that the investigation is completed and some of the accused were enlarged on bail by this Court. Though there is force in the submissions of the learned Assistant Solicitor General, but considering the facts and taking the other circumstances into consideration, this Court inclined to grant bail
to the petitioner.
Lv
13. In the result, the criminal petition is allowed and the petitioner/A8 shall be enlarged on bail, on his executing self bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two sureties each for a likesum to the satisfaction of the IV Additional Junior Civil Judge, Guntur, Guntur District. After release, petitioner/A8 shall appear before the Investigating Officer on every Wednesday and Saturday between 10am and 1pm till completion of trial and the petitioner/A8 shall not leave Vijayawada without intimating the investigating officer.
As a sequel, all the pending miscellaneous applications shall stand
closed.
~ SDI- A.VIJAYA BABU ASSISTANT REGISTRAR SECTION-OFFICER __ / TRUE COPY// for ASSISTANT REGISTRAR To .
1.The IV Additional Junior Civil Judge, Guntur, Guntur District.
2.The Director, CBI, ACB, Visakhapatnam.
3.The Superintendent, District Jail, Guntur.
4.Two CCs to Sri P. Chennakesavulu, Special Public Prosecutor for CBI Cases, High Court of A.P., at Amaravati(OUT)
5.One CC to Sri M. Vidyasagar, Advocate(OPUC)
6.One spare copy.
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HIGH COURT
DR.J
DT.06-01-2022.
BAIL ORDER
CRL.P.No. 7293 of 2021
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