Andhra Pradesh High Court - Amravati

Pati Srinivas Rao vs State Rep By Its Public Prosecutor on 12 July, 2022

          HON'BLE SRI JUSTICE SUBBA REDDY SATTI

             CRIMINAL PETITION NO. 4074 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/A16 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, respectively,

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 public gathered
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for submitting objections pursuant          to issuance of Gazette

notification with regard to change of name of Konaseema District

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

and 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 pelted stones on the Police, discharging duties,

and burnt BVC collage bus which was 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
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the furniture and set fire to the house and later proceeded to the

house of local MLA.


8.    Basing on the said complaint, police registered case referred

to supra wherein petitioner is arrayed as A16.


9.    Heard Sri Ch. S.V.Suraj, learned counsel for the petitioner

and Sri Soora Venkata Sainath, learned Special Assistant Public

Prosecutor for the respondent-state. Sec 15-A (3) of the Act was

complied with as learned Special Assistant Public Prosecutor filed

memo to that effect.


10.   Learned    counsel    for    the   petitioner   submits   that   the

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

offence.   He   submits     that   petitioner   is    working   as   Office

Subordinate in Commercial Tax Department, Ambajipeta, East

Godavari District. Petitioner in fact, attended the office on that day

and he was discharging duties on that day. Hence, participation of

the petitioner in the rally does not arise. He submits that though

petitioner was in office on that day, Police without proper enquiry

arrayed petitioner as one of the accused. He also filed copy of

attendance register to show that petitioner was in office on the

alleged date of incident.


11.   He further submits that Sections 3(2)(v), 3(2)(va) of SC & ST

(POA) Act are not applicable to the present case. Learned counsel
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relied on Prathvi Raj Chauhan v. Union of India and others1

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. He submits that Police

are      trying    to   apprehend   the   petitioner.   Petitioner,   being

government employee will abide any conditions imposed by this

Court and thus prayed to grant pre-arrest bail to the petitioner.


12.       Learned Special Assistant Public Prosecutor submits that

petitioner participated in the agitation. Prosecution identified

petitioner through video footage. Apart from that prosecution

established prima facie case against the petitioner through the

statements of LWs 36 to 40. 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 enlarged on bail, he may tamper

with the evidence and try to influence the witnesses and it will be

difficult for the prosecution to identify the remaining accused who

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

the petition.


13.       I have given my anxious consideration to the submissions

made on either side and perused the record.




1
    2020 (4) SCC 727
                                 5



14.   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 said 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.


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

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

Except mentioning the names of accused in FIR, no specific overt

acts were attributed against the petitioner or any other accused.


16.   Learned Special Assistant Public Prosecutor raised objection

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.


17.   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
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the Police as well as guards at the house and poured petrol on the

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.


18.   In Khuman Singh v. State of Madhya Pradesh 2, 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.


19.   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.

            .....

AIR 2019 SC 4030 = 2020 (18) SCC 763

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 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."

20. 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.

21. Whether the petitioner is entitled to Anticipatory Bail.

The Hon‟ble Apex Court in Siddharam Satlingappa Mhetre

Vs. State of Maharashtra and Ors3 the 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

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

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."

22. As pointed out by learned 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.

23. 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.

24. 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.]

25. 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. Going by the record, it is evident that the

mob gathered for submitting their representations at Collectorate

office, but not with an intention of committing any offence.

26. Further as per learned counsel for the petitioner, petitioner

who is working as Office Subordinate in Commercial Taxes

Department attended duty on the date of the incident and he filed

copy of attendance certificate. A perusal of the xerox copy of

attendance register filed along with bail application, reveals that

petitioner attended his office at Ambajipet and was discharging

duties on 24.05.2002. Further, going by the submission of learned

Special Assistant Public Prosecutor basing on confession of other

accused, petitioner was arrayed as accused in the above crimes.

27. 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 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."

(1998) 8 SCC 130

28. 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. ..."

29. In view of the expressions of Hon'ble Apex Court qua

confession, and since no specific overt acts are made against the

petitioner and petitioner, as per attendance register is in the office

on the day of occurrence, this Court deems it appropriate to grant

pre-arrest bail to the petitioner.

30. Accordingly, this criminal petition is allowed. Petitioner/A16

shall be enlarged on bail in the event of his 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

2022 LawSuit (SC)68

Police Station, East Godavari District twice in a week i.e. on every

Tuesday and Saturday 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 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.4074 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