Andhra Pradesh High Court - Amravati

Vasamsetti Subhash vs The State Of Andhra Pradesh on 12 July, 2022

          HON'BLE SRI JUSTICE SUBBA REDDY SATTI

             CRIMINAL PETITION NO.4424 of 2022

ORDER:-


     This Criminal Petition is filed under Section 438 of the Code

of Criminal Procedure, 1973 (for short "Cr.P.C.") to enlarge the

petitioner/accused on pre-arrest bail in the event of his arrest in

connection with crime No.126 of 2022 of Amalapuram Taluka

Police Station, East Godavari District, registered for the offences

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

155, 452, 436, 353, 332, 427 and 188 read with 149 of IPC,

Sections 3 and 4 of PDPP Act and Sections 3(2)(v), 3(2)(va) of the

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)

Amendment Act, 2015 (for short SC&ST (POA) Act).


2.   The above crime was registered basing on the report lodged

by S.I. of Police, Amalapuram Taluka Police Station, with regard to

the incident that took place on 24.05.2022 pursuant to the

notification issued by the Government by changing the name of

Konaseema District as Dr.B.R.Ambedkar Konaseema District.


     The facts of the case in brief are:


3.   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

for submitting objections pursuant         to issuance of Gazette

notification regarding change of name of Konaseema District by

violating the proceedings issued under Section 144 of Cr.P.C. and
                                   2




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.


4.    Thereafter the mob moved towards Collectorate and on the

way to Collectorate when Police were discharging their duties the

mob pelted stones on the Police and burnt BVC collage bus being

used as transport vehicle for the Police.


5.    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.


6.    Thereafter,   the   mob   proceeded   to   Red   Bridge   (Erra

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

to the buses.


7.    The mob further moved towards the house of Hon‟ble

Minister.   When the mob shouted and beat police persons, AR

constable fired rounds in air, but agitators attacked complainant

and his staff; attacked staff of Hon‟ble Minister, caused damage to

the furniture and set fire to the house and later proceeded towards

the house of local MLA.


8.    Basing on the said complaint the present crime is registered

and petitioner is arrayed as one of the accused.
                                        3




9.        Heard        Sri   K.Chidambaram,   learned   Senior   Counsel

representing Sri T. Sai Surya, learned counsel for the petitioner

and Sri P. Anand, learned Assistant Public Prosecutor for the

respondent-state. Learned Assistant Public Prosecutor submitted

that Section 15(A)(3) of SC & ST (POA) Act is complied with.


10.       Learned Senior Counsel for the petitioner submits that the

petitioner is innocent and he is no way connected with the alleged

offence. He submits that petitioner did not participate in the said

rally and in fact, petitioner was out of station. He submits that the

name of the petitioner does not reflect in the FIR. Basing on the

confession of other accused, petitioner is arrayed as accused. He

submits that petitioner is falsely implicated for extraneous

consideration and to harass him being the son of ward counsellor.

He also submits that the offences alleged would not attract against

the petitioner since he neither participated in agitation nor

conspired with any other person in commission of the offence. He

submits that except confession of co-accused, there is no material

to connect the petitioner with the alleged offence and as there are

no specific allegations against the petitioner, none of the alleged

Sections are attracted against the petitioner.


11.       He further submits the ingredients of Section 3 of SC & ST

(POA) Act are not attracted against the petitioner. Learned counsel

relied on Prathvi Raj Chauhan v. Union of India and others1


1
    2020 (4) SCC 727
                                    4




and submits that the bar under Section 18 and 18(A) of the SC &

ST (POA) is not applicable to the facts of this case and hence, the

petition under Section 438 is maintainable. Hence, he prays to

grant pre-arrest bail to the petitioner.


12.   Learned Assistant Public Prosecutor submits that as per

confessional statement of co-accused, who were arrested on

11.06.2022 and 14.06.2022, it surfaced that petitioner played

crucial role and conspired, hatched up a plan and abetted the

public to commit alleged offences. He submits that one of the

accused

Sk. Ahmad Vali @ Vali confessed that he was follower of the

petitioner and that petitioner created whats app group in the name

of „Subhash Yuvasena‟. He further submits that the mediators‟

report also shows that petitioner, as a leader motivated other

people for committing alleged offence.


13.   He further submits that in view of bar under Section 18 of

SC & ST (POA), this petition under Section 438 of Cr.P.C. is not

maintainable. He submits that investigation is pending and if the

petitioner is granted bail, there is every possibility that he will

influence the witnesses. He further submits that it will be difficult

for the prosecution to identify the remaining accused who were

participated in the chain of offences. Hence, he prays to dismiss

the petition.
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14.   I have given my anxious consideration to the submissions

made on either side and perused the record.


15.   The record reveals that pursuant to notification issued by

the Government about change of name of Konaseema District as

Dr.B.R. Ambedkar Konaseema District a call was given by JAC

Konaseema     District   Sadhana       Samithi   for   submission   of

representations. In pursuance of the same thousands of people

gathered at Clock Tower Centre and proceeded to Collectorate

Office. When Police tried to prevent them from entering the

premises, the mob pelted stones on the Police and caused injuries

to them. Further the mob also damaged Collectorate Office as well

as Ambedkar Building and also lit fire to buses.


16.   As can be seen from the entire record prosecution identified

accused basing on CC TV footage, social media videos and photos.

Name of the petitioner was not even mentioned in the complaint.


17.   Learned Assistant Public Prosecutor raised a contention

regarding maintainability of this petition under Section 438 of

Cr.P.C. in view of bar under Sections 18 and 18(A) of the SC & ST

(POA) Act.


18.   As observed supra, a perusal of the complaint indicates that

more than 1000 people went to Collectorate office and later went

to the house of Hon‟ble Minister. It also indicates that Hon‟ble

Minister was not in the house and the mob, when restrained, beat

the Police as well as guards at the house and poured petrol on the
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flexies and trespassed into the house, damaged computers, sofa

sets, other furniture and set fire to the house. The complaint does

not indicate that since the Minister belongs to SC community the

mob intentionally went to the house of the Minister and committed

act as alleged.


19.   In Khuman Singh v. State of Madhya Pradesh2, the

Hon‟ble Apex Court held that unless an offence is committed "only

on the ground" that the victim was member of SC community, an

offence under Section 3(2)(v) and 3(2)(va) is not made out.


20.   In Prathvi Raj Chauhan v. Union of India (referred supra),

the Hon‟ble Apex Court held as under:


      11.   Concerning the applicability of provisions of section 438
      Cr.PC, it shall not apply to the cases under Act of 1989. However,
      if the complaint does not make out a prima facie case for
      applicability of the provisions of the 1989 Act, the bar created by
      section 18 and 18-A(i) shall not apply. We have clarified this
      aspect while deciding the review petitions.

      12. The court can, in exceptional cases, exercise power under
      section 482 Cr.PC for quashing the cases to prevent misuse of
      provisions on settled parameters, as already observed while
      deciding the review petitions. The legal position is clear, and no
      argument to the contrary has been raised.

            .....

32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a

AIR 2019 SC 4030 = 2020 (18) SCC 763

complaint, the court has the inherent power to direct a pre-arrest bail.

33. I would only add a caveat with the observation and emphasize that while considering any application seeking pre- arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament."

21. A perusal of the above expressions of the Hon‟ble Apex Court

would indicate that sine qua non for application of 3(2)(v), 3(2)(va)

of SC & ST (POA) is that an offence must be committed against a

person on the ground that such person is member of Schedule

Caste or Schedule Tribe. In the case on hand, as narrated supra,

mob initially went to the Collectorate office and later went to the

minister‟s house. Further setting fire to the flexi of Hon‟ble

Minister or to the furniture in his house does not attract the

offence under 3(2)(v) and 3(2)(va) of SC & ST (POA) Act. Mob,

going by the complaint, damaged furniture set fire since the house

belonged to Hon‟ble Minister and in fact, going by complaint, mob

also damaged house of local MLA. Hence, in the absence of

necessary ingredients to attract the offences under Sec 3(2)(v) and

3(2)(va) of SC & ST (POA) Act, the bar under Section 18 and 18(A)

does not apply to the facts of the case. Thus, the petition under

Sec 438 Cr.P.C. is maintainable.

22. Whether the petitioner is entitled to Anticipatory Bail?

The Hon‟ble Apex Court in Siddharam Satlingappa Mhetre Vs.

State of Maharashtra and Ors3 laid following factors which are

to be taken into consideration while granting pre-arrest bail.

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.

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

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

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."

23. As pointed out by learned senior counsel for the petitioner,

to attract Sections 147 and 148 of IPC, there should unlawful

assembly and common object. For better appreciation it is

appropriate to extract Sections 141, 146, 147 and 148 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.

148. Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

24. Thus, there must be unlawful assembly as defined under

Section 141 of IPC for attracting offences under Sections 147 and

148 of IPC. In the present case, as can be seen from the complaint,

prima facie, nothing is forthcoming from the record to show that

all the people in the mob had a common intention of committing

an offence.

25. 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.]

26. In the present case, admittedly the mob consists of more

than 1000 people. The complaint doesn‟t indicate the common

intention or common object of committing an offence punishable

under Section 307 of IPC. Specific overt acts were not attributed

against the petitioner. In fact, petitioner is not even in town on the

day of incident. Thus, the alleged offence, prima facie, may not

attract against the petitioner.

27. Going by the complaint, the name of the petitioner is not

reflecting in the FIR. According to the prosecution, basing on the

confession made by co-accused, petitioner is arrayed as one of the

accused in the present crime.

28. In Bullu Das Vs. State of Bihar4, 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

(1998) 8 SCC 130

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."

29. In State By Narcotics Control Bureau vs Pallulabid Ahamad

Arimutta 5, the Hon‟ble Apex Court held that :

"It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu 2021 (4) SCC 1, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. ..."

30. In view of the expressions of the Hon‟ble Apex Court qua

confession; extra judicial confession is weak piece of evidence and

that since petitioner is not in station on the day of incident, he is

entitled to pre-arrest bail.

31. Accordingly, this criminal petition is allowed.

Petitioner/accused shall be enlarged on bail in the event of his

2022 LawSuit (SC)68

arrest in connection with Crime No.126 of 2022 of Amalapuram

Taluka Police Station, East Godavari District, on furnishing self

bond for Rs.20,000/- (Rupees Twenty Thousand only) with two

sureties for a like sum each, to the satisfaction of the Station

House Officer, Amalapuram Taluka Police Station, East Godavari

District. The petitioner shall appear before the Station House

Officer, Amalapuram Taluka Police Station, East Godavari District

twice in a week i.e. on every Tuesday and Friday between 9:00 am

to 6:00 pm for a period of eight weeks or till the date of filing of

charge sheet, whichever is earlier.

Petitioner shall cooperate with the police in investigation of the above crime.

Petitioner shall not leave the limits of Amalapuram, without intimating to the concerned police till filing of charge sheet.

Petitioner shall neither influence the witnesses nor tamper the evidence.

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 findings in this order be construed as expression of opinion only for the limited purpose of considering bail in the above crime and shall not have any bearing in any other proceedings.

________________________________ JUSTICE SUBBA REDDY SATTI Date : 12.07.2022 IKN

HON'BLE SRI JUSTICE SUBBA REDDY SATTI

CRIMINAL PETITION NO. 4424 of 2022

Date : 12.07.2022

IKN

A perusal of the complaint would indicate that a group consisting

of nearly 1500 people gathered together pursuant to the

investigation issued by the Government of Andhra Pradesh by

changing the name of Konaseema District as Dr.B.R.Ambedkar

Konaseema District by fixing 30 days time to submit objections. In

fact, JAC of Konaseema Sadhana Committee gave a call to the

public for submitting representations to the District Collector by