Katari Hemalatha vs The State Of Andhra Pradesh
2022 Latest Caselaw 3428 AP

         THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               CRIMINAL PETITION No.4477 of 2022

ORDER:

Accused Nos.1, 3 to 10 in Crime No.180 of 2022 of Chittoor

II Town Police Station, Chittoor District, filed the above criminal

petition under Section 438 of Code of Criminal Procedure, 1973

(for short "Cr.P.C") seeking pre-arrest bail.

2. The case of the prosecution is that the de facto complainant,

is working as Head Constable in Chittoor II Town Police Station.

On 23.06.2022 at 8.30 p.m., as per the instructions of Inspector of

Police, Chittoor II Town Police Station and on receipt of credible

information about sale of ganja, the complainant along with

Inspector of police, Sub Inspector of Police, constables and

Tahsildar proceeded to PNC Municipal High School, Santapeta,

Chittoor in police jeeps. There they caught hold of Purnachandra

(A-2 herein) and on search, they found he was in possession of

Ganja in a white bag. When the Tahsildar enquired

Purnachandra/A-2 about the contraband, he stated that there is

some more quantity of Ganja in the house of one Prasanna in

Obanapalli Colony. Later at about 10.30 p.m., A-2 took the police

to the house of Prasanna, where police seized two white plastic

bags containing Ganja. Thereafter when police boarded A-2 in the

jeep along with contraband, A-2 shouted to save him from the

custody of police even by killing the police. At that time, petitioners

herein and others formed themselves into an unlawful assembly

and attacked the police and vehicles with sticks and stones in

order to escape A-2 from the police custody. In the said incident,

police Jeep bearing No.AP18 P0284 was damaged. During the said

incident, A-2 escaped from the jeep. During the scuffle, the

complainant sustained injuries on his left wrist and above left

knee. Jeep driver also sustained injuries on his head and mouth.

Basing on the above special report (at 1-30 AM), police registered

the above crime for the offences punishable under Sections 143,

147, 148, 307, 353, 427, 225, 341, 332 of the Indian Penal Code,

1860 (for short "IPC") and Sections 3 of the Prevention of Damage

to Public Property Act, 1984 (the "Act 1984").

3. Heard Sri Posani Venkateswarlu, learned senior counsel

representing Sri P. Sai Surya Teja, learned counsel for petitioners

and the Sri Y.Nagi Reddy, learned Public Prosecutor for

respondent-State.

4. Learned senior counsel would submit that the petitioners are

innocent and they have nothing to do with the alleged offence.

Except Section 307 of IPC, punishment for all other offences is less

than seven years. He submits that the basis for registration of the

present F.I.R. is the alleged confession and seizure mahazarnama

dated 23.06.2022 at 8.30 p.m. wherein the Inspector of Police,

Chittoor II Town Police Station along with his staff and Tahsildar

apprehended one Purnachandra, A-2 herein when he was allegedly

selling Ganja. He would submit no signature of A-2 is available on

the said seizure mahazarnama. This instance itself demonstrates

that apprehending A2 is false and concocted by police. He further

submits that surprisingly the Head Constable who lodged the

present complaint had not mentioned in the complaint about the

presence of Inspector of Police at the scene of offence, even though

the entire proceedings of seizure mahazarnama took place in his

presence.

5. Learned senior counsel further submits that the complainant

gave a false report for causing obstruction to the trial of

S.C.No.110 of 2016 on the file of VI Additional Sessions Judge-

cum-Special Judge for Trial of Offences Against Women, Chittoor,

which is popularly known as "Mayor couple murder case", which is

scheduled to be held from 30.06.2022. He submits that one Katari

Anuradha and her husband Katari Mohan were brutally murdered

in broad day light in Municipal Office. He submits that 1st

petitioner herein is daughter-in-law, 2nd petitioner is daughter, 3rd

petitioner is son-in-law, 4th petitioner is another son-in-law of the

deceased and the other petitioners were witnesses and their family

members in the above Sessions Case. The accused therein along

with local politicians have been pressurizing the victims and

witnesses to come for compromise. He further submits that

suspecting that LW1 i.e. injured witness in the above Sessions

Case would either be lifted or liquidated by the accused therein, he

was kept in secret place under the supervision of Prasanna Kumar.

Purna Chandra is friend of Prasanna Kumar and having come to

know of it, police with a view to secure the presence of LW1-injured

witness, intended to implicate the Prasanna Kumar and Purna

Chandra in false case.

6. Learned senior counsel further submits that in fact, police

personnel intentionally drove the vehicle on the legs of 1st

petitioner due to which 1st petitioner sustained fracture injury and

she was shifted to hospital for treatment. 1st petitioner's statement

was recorded and basing on the same, crime No 181 of 2022 was

also recorded for the offences under Sec 337 and 279 IPC, as such

the question of escaping from the scene of offence by the 1st

petitioner, who sustained injuries does not arise. He submits that

to save all the accused in Mayor double murder case, the police,

accused therein and local politicians in power colluded together

and started victimizing the witnesses and family members of

deceased, as they are not accepting for compromise. He further

submits that even prior to the alleged incident in this case, on

22.06.2022 the 1st petitioner herein gave a representation to the

Superintendent of Police, Chittoor to give security to their family

members and to witnesses and to seek justice in the above

Sessions Case. He further submits that unless the presence of

petitioners is there, the other witnesses may not come for trial in

the above Session case, in view of constant life threat given by the

accused therein. He submits that petitioners are falsely implicated

in this case and there are no criminal antecedents against the

petitioners and they are ready to cooperate with the investigation

and he thus, prayed the Court to grant pre-arrest bail to the

petitioners.

7. Per contra, learned Public Prosecutor would submit that the

petitioners and others intentionally committed the offence with a

view to escape Purnachandra, accused in NDPS case. In order to

escape the accused from the hands of police, when accused is in

police jeep, petitioners and others attacked the police personnel

with sticks and stones and damaged the police jeep. Thus,

petitioners and others became instrumental for the escape of

Purnachandra from the custody of police. He further submits that

the petitioners and others obstructed the police in discharge of

their official duties and the petitioners are highly influential. If the

witnesses are threatened, they can invoke the provisions of

Witness protection Act. Obstructing police from discharging their

duties and causing injuries to police personnel is to be viewed

seriously. Petitioners having committed grave offence are not

entitled to pre-arrest bail.

8. I have given my anxious consideration and perused the

entire material on record.

9. According to prosecution, the police along with the Tahsildar

apprehended K.Purnachandra, S/o K.Kuppaswamy, 26 years,

resident of Sainagar Colony, Santapet, Chittoor Town on

23.06.2022 and seized 2 Kgs of ganja from his possession and

recorded his confession statement. A perusal of the confession

statement would disclose that the Inspector of Police, Chittoor II

Town Police Station along with Sub Inspector of Police, Constables,

mediators and Tahsildar went to scene of occurrence at 8.30 p.m.

on 23.06.2022 and apprehended K.Purnachandra and seized 2 Kgs

of ganja and also confessed that remaining ganja is in the house of

one Prasanna Kumar. The said confession and seizure

mahazarnama was concluded by 10.00 p.m. The confession cum

seizure report contains the signatures of mediators, Tahsildar,

Inspector of Police, Sub Inspector of Police, Chittoor II Town Police

Station, however, it does not contain the signature of

K.Purnachandra.

10. Pursuant to the confession, K.Purnachandra, led the police

and Tahsildar to the house of Prasanna Kumar, where they seized

18 Kgs of ganja. According to the prosecution, said Prasanna

Kumar, on seeing the police escaped from his house. The second

seizure report, which was drafted at 23.06.2022 at 10.30 p.m. was

concluded by 11.30 p.m., shows that when the Inspector of Police

got K.Purnachandra into the police jeep, relatives of Purnachandra

and others with an intention to escape Purnachandra, created

galata and at that time, Purnachandra escaped from the police

custody and later, the persons who created galata also left the

scene of offence. The seizure report further discloses that out of

seized ganja, 100 grams was kept in a separate cover duly signed

by the mediators. Drafting of seizure report was concluded by

11.30 p.m. under the street lights. Basing on the same, Crime

No.179 of 2022 for the offence under Section 29 (b) (ii)(c) of the

Narcotic Drugs and Psychotropic Substances, Act, 1985 was

registered on 24.06.2022at 12.30 a.m.

11. According to prosecution, at the time when the police went to

the house of Prasanna Kumar galata took place, in which the

petitioners along with others beat Head Constable and also jeep

driver, as a result, they sustained injuries. Basing on the report

received at 1.30 a.m. on 24.06.2022, the present crime was

registered. The contention of learned senior counsel for petitioners

is that in fact, the police jeep ran over the legs of 1st petitioner and

she sustained severe injuries, as such her escaping from the scene

of offence does not arise. In support of that contention, learned

senior counsel filed copy of F.I.R No.181 of 2022, which was

registered basing on the written report given by 1st petitioner. A

perusal of the said complaint would disclose that complaint was

lodged at 6.00 p.m. at 24.06.2022.

12. Wound certificate filed by the prosecution would show that

the compliant received injuries i.e., an abrasion just above left

knee joint and an abrasion over tip of right thumb and the injuries

are simple in nature. As per the wound certificate issued by the

Casualty Medical Officer, District Headquarters Hospital, Chittoor,

the injured was first seen by the Doctor at 4.25 a.m. on

24.06.2022 and the examination commenced at 4.30 a.m. With

regard to wound certificate of other person i.e. M.Durgaiah, it

discloses no external wounds. He was first seen by the Doctor at

4.30 a.m. and examination commenced at 4.40 p.m. on

24.06.2022.

13. Learned Public Prosecutor would submit that seriousness of

the injuries may not be criteria, but the intention or knowledge of

the accused is essential to attract the offence under Section 307 of

IPC. He relied on the judgment of the Hon'ble Apex Court in State

of Madhya Pradesh Vs. Kashiram and others1, wherein it was

held thus:

"16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 of IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury."

Dealing with the case where the trial Court punished the

accused for the offence under Section 307 of IPC, which was set

aside the High Court, the Hon'ble Apex Court restored the

conviction of the trial Court by observing at Para-12 thus:

(2009) 4 SSC 26

"12. To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."

14. The parameters for granting anticipatory bail are no more res

integra. The Hon'ble Apex Court in Siddharam Satlingappa

Mhetre Vs. State of Maharashtra and Ors.2 has laid down the

following guidelines:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

AIR 2011 SC 312 = MANU/SC/1021/2010

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

15. In Sushila Aggarwal and Ors. vs. State (NCT of Delhi) and

Ors.3, the Hon'ble Apex Court summarized the discussion and

conclusions for grant of anticipatory bail as follows:

"52.3. The Accused is not obliged to make out a special case for grant of anticipatory bail; reading an otherwise wide power would fetter the court's discretion. Whenever an application (for relief Under Section 438) is moved, discretion has to be always exercised judiciously, and with caution, having regard to the facts of every case. (Para 21, Sibbia).

52.4. While the power of granting anticipatory bail is not ordinary, at the same time, its use is not confined to exceptional cases (Para 22, Sibbia).

52.5. It is not justified to require courts to only grant anticipatory bail in special cases made out by Accused, since the power is extraordinary, or that several considerations -

(2020) 5 SCC 1

spelt out in Section 437- or other considerations, are to be kept in mind. (Para 24-25, Sibbia).

52.6. Overgenerous introduction (or reading into) of constraints on the power to grant anticipatory bail would render it constitutionally vulnerable. Since fair procedure is part of Article 21, the court should not throw the provision (i.e. Section 438) open to challenge "by reading words in it which are not to be found therein." (Para 26).

52.7. There is no "inexorable rule" that anticipatory bail cannot be granted unless the applicant is the target of mala fides. There are several relevant considerations to be factored in, by the court, while considering whether to grant or refuse anticipatory bail. Nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the Accused's presence not being secured during trial; a reasonable apprehension that the witnesses might be tampered with, and "the larger interests of the public or the state" are some of the considerations. A person seeking relief (of anticipatory bail) continues to be a man presumed to be innocent. (Para 31, Sibbia)."

16. In Gudikanti Narasimhulu Vs. Public Prosecutor4, the

Hon'ble Apex Court observed that -

"... Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized Under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an Accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law".

(1978) 1 SCC 240

17. In K.Mallesham vs. State of A.P.5, learned single judge of

the composite High Court of Andhra Pradesh, while dealing with

an application filed under Section 438 of Cr.P.C., observed thus:

"The crucial question would be as to whether the contents of the complaint or the FIR would attract the provisions of the Prevention of Atrocities Act. Mere mention or non-mention of the provisions of the Prevention of Atrocities Act is of no consequence. In a given case, the contents of the allegations may attract the provisions of the Prevention of Atrocities Act, though there is no such mention of the provisions at the time of registration of the crime. Like-wise, the allegations in the FIR or the complaint may not attract the provisions of the Prevention of Atrocities Act, at all, though a mention is made in the FIR of those provisions. What is required is a pragmatic assessment of the contents of the complaint in every given case. Even if there is a single averment attracting the provisions of the Prevention of Atrocities Act, it would be enough to exclude the operation of Section 438 of the Code. What is important is to have an assessment of the cumulative effect of the allegations made in the Complaint or the FIR, as the case may be." (emphasis is mine)

18. In view of the judgments referred above, now this Court has

to see whether the petitioners are entitled for grant of pre-arrest

bail. As can be seen from the report given by the Head Constable,

he along with Sub Inspector of Police, other police staff and

Tahsildar as per the instructions of the Inspector of Police,

apprehended Purnachadra and when the Tahsildar enquired the

said person, he confessed that about his possession ganja and also

further confessed about remaining ganja at the house of Prasanna

Kumar. Accordingly, police and Tahsildar went to the house of

said Prasanna Kumar at 10.30 p.m. and found 18 Kgs of ganja

1998 (5) ALD 120

under the plastic chair in the bathroom and they seized the same.

Later, when the police boarded the said Purnachandra, he raised

cries to escape him from the police custody and if necessary by

hacking the police. Then Katari Hemalatha, Lavanya, Kiran,

Satish, Gopi, Jyothi, Murali and others attacked the police,

damaged the police jeep and beat the Head constable and driver.

In that process, Purnachandra escaped from the custody of police.

19. It is pertinent to note here that as per the seizure cum

confession recorded at 8.30 p.m. on 23.06.2022, recorded in the

presence of Inspector of Police and other officials, the signature of

said Purnachandra is not present. As per the seizure

mahazarnama, said Purnachandra is in the custody of police from

8.30 p.m. to 10.30 p.m. and till the alleged galata took place

before 11-30 PM. However, no crime was registered.

20. It is apt to refer to Section 41B of Cr.P.C., which is extracted

hereunder:

41B. Procedure of arrest and duties of officer making arrest.--Every police officer while making an arrest shall--

(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;

(b) prepare a memorandum of arrest which shall be--

(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;

(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

21. A perusal of the above section indicates that whenever a

police officer making arrest, apart from getting signature of family

member of other respectable person, accused has to countersign

the same. In the present case, non-obtaining of signature of

accused on the seizure cum mediators report, prima facie gives

raise doubt in the mind of the Court with regard to arrest of

Purnachandra. Thus, it is clear that A.P.P.M. Order No. 609 (3)

was also not followed.

22. The second seizure report drafted at 10.30 p.m. on

23.06.2022, which was concluded by 11.30 p.m. does not reveal

about the attack on the police, except stating that relatives of

Purnachandra and his associates created galata. The report does

not say about the injuries sustained by the police. The second

seizure mahazarnama was completed at 11.30 p.m. and the police

registered Crime No.179 of 2022 at 12.30 p.m. After concluding

the second panchanama, special report was submitted by

complainant at 1.30 a.m. on 24.06.2022. Hence, nearly two hours

after the incident special report was lodged by defacto complainant

with regard to incident alleged to have been taken place before

11.30 p.m. at the house of Prasanna Kumar.

23. The contents of the report given by the complainant herein

further manifest that after galata, when one person informed the

others that extra police personnel are coming, all the accused ran

away from the spot. However, this was not mentioned in the

second seizure report. This court is conscious that it is dealing

with an application under Sec 438 Cr.P.C. However, since the FIR

was registered basing on report of Head Constable and the offences

alleged are serious in nature, examining all the material keeping in

view the mandate of the Hon'ble Apex Court qua the considerations

either to grant or refuse pre-arrest bail.

24. A perusal of the complaint lodged by 1st petitioner herein

shows that she sustained severe injury when the police jeep ran

over her legs in the incident that took place on 23.06.2022, as

such the question of 1st petitioner running away from the scene of

offence does not arise.

25. All these incidents referred to supra, make the case more

discernable, as argued by learned senior counsel for the

petitioners, that petitioners 1 to 4 herein, being the family

members of deceased Mayor and her husband and petitioners 6, 8

and 9, being the witnesses in the Sessions Case, with an intention

to stall the trial of Sessions Case, are falsely implicated in this

case. Moreover, there are no criminal antecedents against the

petitioners. The contents of F.I.R and the wound certificates, prima

facie, would not attract the ingredients of Section 307 of IPC. The

punishment prescribed for the other offences is below seven years,

this Court is inclined to grant anticipatory bail to the petitioners.

26. Accordingly, the criminal petition is allowed and the

petitioners/Accused Nos.1, 3 to 10 be enlarged on bail in the event

of arrest in connection with Crime No.180 of 2022 of Chittoor II

Town Police Station, Chittoor District, on their executing each a

personal bond for a sum of Rs.20,000/- (Rupees twenty thousand

only) with two sureties each for a likesum to the satisfaction of

Station House Officer, Chittoor II Town Police Station, Chittoor

District. The petitioners shall cooperate with investigation and

shall not influence the witnesses or tamper with evidence.

It is made clear that the findings in this order be construed

as expression of opinion only for the limited purpose of considering

the pre-arrest bail in the above crime and shall not have any

bearing in any other proceedings.

As a sequel, all the pending miscellaneous applications shall

stand closed.

_________________________ SUBBA REDDY SATTI, J 5th July, 2022

PVD