Polisetti Suresh, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 6943 AP

     THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

             CRIMINAL PETITION No.7051 OF 2022

ORDER:

This Criminal Petition is filed under Section 438 of the Criminal

Procedure Code ('Cr.P.C.' in short), seeking pre-arrest bail, by the

petitioners/Accused in Crime No.139 of 2022 of Amalapuram Town

Police Station, East Godavari District, registered for the offences

punishable under Sections 307, 143, 144, 147, 148, 151, 152, 332,

336, 427, 188, 353, 324, 435 read with 149 of IPC, Sections 3 and 4 of

Prevention of Damage to Public Property Act, 1984 and Section 32 of

the Police Act, 1861.

2. The facts of the case, in brief, are that 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 with regard to change of name of

Konaseema District, by violating the order 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.

Thereafter the mob moved to Collectorate and on the way to

Collectorate, when Police were discharging their duties, the mob pelted

stones on the Police and also burnt BVC college bus which was used as

transport vehicle for Police.

Further, when the Police tried to control the mob at

Collectorate, the mob pelted stones on Police personnel due to which

some of the Police sustained injuries and glasses of Collectorate Office

and Ambedkar Bhavan were damaged.

Thereafter, the mob proceeded to Red Bridge (Erra Vanthenna),

intercepted two RTC buses, damaged them and set fire to the buses.

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 police personnel and staff of the

Hon'ble Minister, caused damage to the furniture and set fire to the

house of the Minister and later proceeded to the house of local MLA.

Basing on the complaint of the Village Revenue Officer of 1st and

30th Wards of Amalapuram, the above crime was registered.

3. Heard Sri Mullapudi Satyanarayana, learned counsel for the

petitioners and Sri Sravan Kumar Naidana, learned Special Assistant

Public Prosecutor for the respondent-State.

4. Learned Counsel for the petitioners submitted that six crimes

were registered in connection with the incident said to have been

occurred on 24.05.2022 at Amalapuram i.e. Crime Nos.138, 139, 140

and 141 of 2022 of Amalapuram Town Police Station and Crime

Nos.126 and 127 of Amalapuram Taluq Police Station.

It is stated that the petitioners are Agriculturists. They never

involved and they have no knowledge of the incidents alleged.

However, the Police foisted false case against the petitioners and

implicated them as Accused in the above crime on the basis of

confession statement of one of the arrest accused and they are

apprehending their arrest in the said crime for their no fault.

It is also contended that some of the accused in these crimes

and the other crimes, registered in connection with the same incident,

were granted pre-arrest/regular bail and sought to consider the

present petitions also on similar lines, on any conditions that may be

imposed.

6. On the other hand, the learned Special Assistant Public

Prosecutor submitted that involvement of the petitioners is evident

from the confession statement of the other arrested accused, CC TV

footages, social media videos and photographs taken at the scene of

offence. It is further submitted that investigation is yet to be

completed.

The learned Special Assistant Public Prosecutor, while drawing

attention of this Court to the decision of the Hon'ble Supreme Court in

Kodungallu Film Society v. Union of India1, contended that if at

all this Court wants to consider granting bail to the petitioners, costs

for damaging public property may be imposed on them as per the

decision of the Hon'ble Supreme Court. The relevant portion of the

said decision reads as under:

C. Liability of person causing violence

a) .......

          b)      .......

          c)       A person arrested for either committing or
          initiating,

promoting, instigating or in any way causing to occur any act of violence which results in loss of life or damage to property may be granted conditional bail upon depositing the quantified loss caused due to such violence or furnishing security for such quantified loss. ....."

7. Perusal of the complaints discloses that there are no specific

allegations against the petitioners.

The Hon‟ble Apex Court in Siddharam Satlingappa

(2018) 10 SCC 713 : 2018 SCC Online SC 1719

Mhetre Vs. State of Maharashtra and Ors 2 laid the following

principles which are to be considered while granting 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."

The contention of the learned counsel for the petitioners is that

the petitioners herein were falsely implicated in this crime based on the

confession statement of one of the arrested accused due to political

differences whereas according to the prosecution, petitioners are active

participant in the rally and he executed illegal acts as per conspiracy of

the leaders.

In Bullu Das Vs. State of Bihar 3 , 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

(1998) 8 SCC 130

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."

The learned Public Prosecutor specifically urged that the

petitioners' custody is important in these crimes, since according to the

prosecution, he is active participant in hatching up the plan through

whatsapp group and other social media platform, which resulted in

occurrence of large-scale violence and execution of other related illegal

acts as conspired.

As pointed out by learned counsel for the petitioners, to attract

Sections 146 and 147 of IPC, there should unlawful assembly. For

better appreciation it is appropriate to extract Sections 141, 146 and

147 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.

Thus, there must be unlawful assembly as defined under Section

141 of IPC for attracting offences under Sections 146 and 147 of IPC.

In the present case nothing is forthcoming from the record to show

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

an offence.

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.]

Further, admittedly the mob consists of more than 1000 people.

None of the complaints indicate about common intention or common

object of committing an offence punishable under Section 307 IPC.

Specific overt acts were not attributed against the petitioners.

It is also evident from the record that the mob gathered for

submitting their representations at Collectorate office, but not with an

intention of committing any offence and admittedly the mob was not

armed with weapons. Photographs filed by prosecution do not show

that mob is armed with weapons.

With regard to the contention of the learned Special Assistant

Public Prosecutor, relying on the judgment cited supra, till today, there

is no material to show that the petitioners have damaged any property.

In view of the same, the decision relied on by the learned Special

Assistant Public Prosecutor cannot be made applicable at this stage

and his request to impose costs cannot be considered.

8. Taking the facts and circumstances of the case into

consideration and considering the submissions of the learned Counsel

for the petitioners that in similar matters, this Court has granted bail,

this Court feels it appropriate to consider granting bail to the

petitioners herein on the following conditions, duly considering the

apprehension of the learned Special Assistant Public Prosecutor:

(i) The petitioners shall be released on pre-arrest bail in the event of their arrest in Crime No.139 of 2022 of Amalapuram Town Police Station, on their executing self bond for Rs.50,000/- (Rupees fifty thousand only) each with two

sureties each for a like sum each to the satisfaction of the Station House Officer, Amalapuram Town Police Station, East Godavari District ;

(ii) On release, the petitioners shall appear before the Station House Officer, Amalapuram Town Police Station, East Godavari District, twice in a week i.e. on every Monday and Thursday between 9.00 a.m. and 12.00 noon, till filing of the charge sheet; and

(iii) The petitioners shall not directly or indirectly contact the complainant or any other witnesses under any circumstances and any such attempt shall be construed as an attempt of influencing the witnesses and shall not tamper the evidence and shall co-operate with the investigation.

Further, the petitioners shall scrupulously comply with the above conditions and in case of infraction of the same, the prosecution is at liberty to move appropriate application for cancellation of bail.

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

Accordingly, the Criminal Petition is allowed.

Miscellaneous applications, pending if any, shall stand closed.

________________________ JUSTICE RAVI CHEEMALAPATI 14th September, 2022 GBS