THURSDAY, THE SIXTH DAY OF JANUARY TWO THOUSAND AND TWENTY TWO :PRESENT: THE HONOURABLE SRI JUSTICE D RAMESH ~~ CRIMINAL PETITION NO: 7295 OF 2021 Between: Kishore Kumar Reddy Darisa @ Darisa Kishore Kumar, S/o Late enkata Reddy, aged 35 years, R/o. D.No.1/116-3A, Ungarala © Nagar, Railway Koduru, Kapada District. ...Petitioner/Accused No.13 - AND The State of Andhra Pradesh, Rep. by its Public Prosecutor Through Deputy Superintendent of Police CBI/ACB/Visakhapatnam. ...Respondent Petition under Sections 437 & 439 of Cr.P.C, praying that in the circumstances stated in the memorandum of grounds filed in Criminal Petition, the High Court may be pleased to release the Petitioner/Accused No.13 on bail in RC 15(S)/2020 (RC03262020S0015)/CBI/ACB/ Visakhapatnam) on the file of the CBI, ACB Visakhapatnam. The petition coming on for hearing, upon perusing the Petition and the memorandum of grounds filed in support thereof and upon hearing the arguments of Sri M Vidyasagar, Advocate for the Petitioner and Special Public Prosecutor for CBI for the Respondent, the Court made the following; ORDER:
THE HONOURABLE SRI JUSTICE D.RAMESH CRIMINAL PETITION No.7295 of 2021
ORDER:
This is the successive criminal petition filed by the petitioner/A13 under section 437 and 439 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C") seeking to release the petitioner/A13 on. bail in RC 15(S)/2020 (RCO3262020S0015)/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 a 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 505(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 (RC03262020S0015)/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 22.10.2021. 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 24 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 vs.
Balchand! the rule of criminal justice system is bail not jail.
" 1977(4) SCC 308
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 24th January, 2017) and the petitioner had orally applied for 'default bail'. Under these circumstances, the only course open to the High Court on 11k 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."
Another citation of the Hon'ble Supreme Court reported in between Sanjay Chandra vs. Central Bureau of Investigation*
wherein it is recited that:
7 2005(5) SCC 294 3 2017(15) SCC 67 4 2012 (127) DRJ 418 (SC)
RE ERE EA ES IA em cM ERNE ese
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7. 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 defamatory posts in Telugu language in his facebook account as per the above case of CID through his Moto mobile model G5, Gold colour which was used for Said postings was seized from the petitioner in the presence of mediators, packed it Properly in sealed cover and affixed 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 mobile.
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.
ii. 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.
vy. | 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.Raja§ 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 forum, 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 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
° 2006(1)ALD Cri. 220 * (2001) 7 Supreme Court Cases 673
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' 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 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".
7 Manu/OR/0286/2021
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:
On a 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."
10. 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 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
* (2017) 5 Supreme Court Cases 406
i '
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.
13. In the result, the criminal petition is allowed and _ the petitioner/A13 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
IU
Judge, Guntur, Guntur District. After release, petitioner/A13 shall appear before the Investigating Officer on every Wednesday and Saturday between 10am and lpm till completion of trial and the
petitioner/A13 shall not leave Vijayawada without intimating the
investigating officer.
As a sequel, all the pending miscellaneous applications shall
stand closed.
Sdi- A. VIJAY BABU, ASSISTANT REGISTRAR
ITRUE COPY!/
For assistant REGISTRAR
1 the \V Additional Junior Civil Judge, Guntur, Guntur District.
2.The Director, CBI, ACB, Micah eaaie intendent, District Jail, Gu .
ho ces oe 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.
HIGH COURT
DR,J
DATED:06/01/2022
ORDER
CRLP.No.7295 of 2021
ALLOWED
oe REEDS.
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SS DESpate wen
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