Sri Rapuru Koteswara Rao vs The State Of Andhra Pradesh
2022 Latest Caselaw 2493 AP

            THE HON'BLE Dr. JUSTICE K. MANMADHA RAO

               CRIMINAL PETITION NO.3797 OF 2022

ORDER:-

      This criminal petition is filed under Section 438 of the Code

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

the petitioner on bail in the event of his arrest in connection with

Crime No.111 of 2022 on the file of Chittoor I Town Police Station,

Chittoor District for the offences punishable under Sections 5 read

with 8, read with 10 of the Andhra Pradesh Public Examinations

(Prevention of Malpractices and Unfair Means) Act, 1997 & 408,

409, 201 and 120-B IPC and Section 65 of Information Technology

(IT) Act.

      When the matter was previously heard on 19.05.2022,

learned Additional Public Prosecutor submitted that learned

Additional Advocate General would appear in this matter and

requested to post the matter to this day i.e., on 26.05.2022.

Therefore, the matter is posted to this day under the caption „for

orders‟. Today when the matter is taken up for hearing, learned

Additional Public Prosecutor again sought time due to ill-health of

learned Additional Advocate General.


      This Court is of the considered view that ample opportunities

are already given to the respondents to hear the matter. Since the

matter is posted under the caption „for orders‟ from 18.05.2022

onwards and was adjourned at request of learned Additional

Public Prosecutor, the request of the learned Additional Public

Prosecutor to adjourn the matter again is refused and this Court is

inclined to dispose of the matter based on the arguments

advanced so far.

2. The statement of the complainant/informant in FIR is as

under :

"this is a case of leakage and Divulge of SCC Public Examinations

First Language Telugu, by invigilators in neglect manner of breach of trust

criminally, which occurred on 27.04.2022 in between 09.30 AM to 12.45

PM, which came to light in front of Narayana College, C.B. Road,

Greamspet, Chittoor Mandal & District and reported in PS on same day at

1.50 PM by Complainant S. Purushotham, age 55 years, Main Street,

Ramnagar Colony, Chittoor Town, who is being District Educational

Officer of Chittoor, while he is on supervision duty over the SSC Public

Examination, 2022, he learnt through Whats App as Telugu Question

Paper is Malpractice by some unknown offenders and received the same

question paper photo copy, further he cross checked the question paper

which is exact question paper of the day."

3. It is the version of the petitioner that he is not shown as

accused in the above crime but police came to the office of the

Society situated at D.No.14/72, Haranathapuram, Nellore and

enquired about the petitioner i.e., the petitioner herein is a retired

employee of LIC of India and the father-in-law of the former

Minister for Municipal Administration and Urban Development in

the Government of Andhra Pradesh and presently the Secretary of

the Narayana Educational Society, Nellore, a society registered

under the Societies Registration Act, 2001 with Registration

No.319/1996. The petitioner is aged 85 years and is suffering

with many age related ailments. He is presently admitted in the

Medicover Hospital, Hyderabad and undergoing treatment for

Brainstem Stroke. The medical record pertaining to the same is

being enclosed herewith. The present crime was initially

registered for the offences under Section 5 r/w 8 and 10 of A.P.

Public Examination (Prevention of Malpractice &Unfair Means)

Act, 1997 and under Section 408 IPC only, later the police added

Section 409 IPC, 201 and 120-B IPC and Section 65 of the I.T. Act.

The son-in-law of the petitioner herein was arrested on 10.05.2022

at 10.30 am in Hyderabad and he was produced before the II

Additional Junior Civil Judge, Chittoor, I/c : IV Additional Judicial

Magistrate of First Class, Chittoor and the learned Judge declined

to send the accused to judicial custody by enlarging him on bail.

As such, the petitioner is apprehending arrest in the above crime.

Therefore, he sought for grant of pre arrest bail.

4. Heard Mr. Dammalapati Srinivas and Mr. Venkateswarlu

Posani, learned Senior counsels appearing for the petitioner and

learned Additional Public Prosecutor along with learned Assistant

Public Prosecutor appearing for the respondent-State.

5. On hearing, learned Additional Public Prosecutor

appearing for the respondent-State would submit that the

respondents are investigating the matter against the suspects

basing on the statements recorded from A.1 to A.8 as admitted by

the petitioner. He opposed for grant of pre arrest bail to the

petitioner as he is not entitled for the same and further admitted

that the respondents are not initiated any coercive action against

the petitioner as of now. He relied upon a judgment of Hon‟ble

Supreme Court reported in JASWANTBHAI M. SHETH Versus

ANAND V. NAGARSHETH AND OTHERS1 , wherein it was held

that Grant of High Court's satisfaction as to existence of sufficient

reasons with the applicant for apprehending arrest, held, is a

condition precedent. Hence, the applicant for pre-arrest bail in a

murder case was neither named in the FIR nor was subsequently

made an accused, held, he did not have sufficient reasons to

entertain the requisite apprehension. Therefore, his application to

High Court for pre-arrest bail during continuance of investigation,

held, was premature.

6. Learned Senior counsel appearing for the petitioner

would submit that the facts of the above case are different and in

the instant case the apprehension of arrest is there and the

respondents are going to arrest the petitioner. Moreover, as the

submissions made by the learned Additional Public Prosecutor,

the petitioner is having every sort of apprehension with regard to

his arrest. As such the above citation is not applicable to the

present facts of the case.

7. Further, learned Senior counsel has relied upon another

decision of Hon‟ble Apex Court reported in THE STATE OF

ANDHRA PRADESH Vs. BIMAL KRISHNA KUNDU & ANR.2,

wherein it was held that "in Section 438 of the Code on the ground

that the offences involved are not punishable with death or

imprisonment for life."

8. Learned Senior Counsel submitted that the facts of the

above case are not related to the present facts of the case.

(2000) 10 Supreme Court Cases 7

1997 (8) SCC 104

Further, contended that Section 15 of Andhra Pradesh Public

Examinations (Prevention of Malpractices and Unfair Means) Act,

1997 in overriding Act of other laws, reads as under:

"15. Act to override other laws - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force."

9. Learned Senior counsel further stated that once the

crime is registered against the petitioner are suspected with the

offences punishable under Section 5 r/w 8, r/w 10 they cannot be

held liable for the offences punishable under the Indian Penal

Code and it was clearly discussed in the order of this Court in

W.P.No.10882 of 2021 that when the special enactment i.e., I.T

Act covers the criminal act and the offender, that the offender gets

out of the net of the Indian Penal Code. Learned Senior counsel

further submits that as per Section 5 r/w 8 r/w 10 of Andhra

Pradesh Public Examinations (Prevention of Malpractices and

Unfair Means) Act, 1997 registered against the Accused No.1 to 9

shall be punishable with imprisonment for a term which shall not

be less than three years but which may extend upto seven years.

10. Further, learned Senior Counsel for the petitioner

limited his submission seeking a direction to the police to follow

the procedure prescribed under Section 41A Cr.P.C. and the

guidelines issued by the Hon‟ble Apex Court in ARNESH KUMAR

V. STATE OF BIHAR3.

11. In view of the submissions made by both the learned

counsels and in view of facts and circumstances of the case,

(2014) 8 SCC 273

without touching the merits of the case, and it is prima facie

observed that A.9 was arrested basing on the statements of A.1 to

A.8, similarly the petitioner is apprehending for the arrest.

12. It is to be noted that as per decision of Hon‟ble Supreme

Court reported in PRAKASH SINGH & OTHERS v. UNION OF

INDIA AND OTHERS4, it was held that "the quality of criminal

justice system in a country, to a large extent depends upon the

working of police force." In another decision reported in

JOGINDER KUMAR v. STATE OF U.P.5, wherein it was held that

"The law of arrest is one of balancing individual rights, liberties

and privileges on the one hand and individual duties, obligations

and responsibilities on the other. Arrest of a person should not be

merely on suspicion about the person‟s complicity in the crime

and the Police Officer must be satisfied about the justification of

such arrest on the basis of some investigation."

13. It is pertinent to mention here that in a case reported in

Arnesh Kumar‟s case (Supra 3), wherein it was held that "a Police

Officer that no arrest is made without reasonable satisfaction

reached after some investigation as to the genuineness of

allegations." And the Hon‟ble Supreme Court in a case in Suo

Motu Writ Petition (Civil) No.01/2020, observed that as a first

measure, this Court, being the sentinel on the qui vive of the

fundamental rights, needs to strictly control and limit the

authorities from arresting accused in contravention of guidelines

laid down by this Court in Arnesh Kumar‟s case (supra 6) during

pandemic. It may be relevant to quote the same : Out endeavour

2006(8) SCC 1

AIR 1994 SC 1349

in this judgment is to ensure that police officers do not arrest

accused unnecessarily and Magistrate does not authorize

detention casually and mechanically and also held that cases

where offence is punishable with imprisonment for a term which

may be less than seven years or which may extend to seven years;

whether with or without fine.

14. In view of the foregoing discussion, this Court is of the

opinion that the maintainability of the Sections registered against

the petitioner has to be decided by adjudicating the matter at

length of the trial but not on the bail applications. Hence, this

Court deems it appropriate to give a direction to the Investigating

Officer to follow the guidelines prescribed by the Hon‟ble Apex

Court in Arnesh Kumar‟s case (cited supra) and the procedure

prescribed in Section 41 A Cr.P.C.

15. Accordingly, the Criminal Petition is disposed of

directing the Investigating Officer to follow the procedure

prescribed in Section 41A Cr.P.C. and the guidelines issued by the

Hon‟ble Apex Court in Arnesh Kumar‟s case (cited supra) and

further not to take any coercive action while examining the

petitioner.

___________________________________ Dr. JUSTICE K. MANMADHA RAO Date : 26.05.2022 Gvl/akn

THE HON'BLE Dr. JUSTICE K. MANMADHA RAO

CRIMINAL PETITION NO.3797 OF 2022

Date : 26.05.2022

Gvl/akn