Adapa Shyam Kumar Shyam vs The State Of Andhra Pradesh,
2022 Latest Caselaw 7401 AP

     THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

     CRIMINAL PETITION NOs.7698 and 7691 of 2022

COMMON ORDER:-

      These Criminal Petitions are filed under Sections 438 of

the Code of Criminal Procedure, 1973 (for short "Cr.P.C."), by

the petitioners/accused seeking pre-arrest bail.


2.    Crime No.126 of 2022 of Amalapuram Taluq Police

Station is registered for the offences punishable under

Sections 143, 144, 147, 148, 151, 152, 155, 452, 436, 353,

332, 427, 188 & 307 read with Section 149 of IPC, Sections 3

and 4 of the Prevention of Damage to Public Property Act,

1984 and Section 3(2)(v), 3(2)(va) of the Scheduled Castes

and the Scheduled Tribes (Prevention of Atrocities) Act

Amendment Act and the petitioners herein were arrayed as

accused.


3.    Crime No.127 of 2022 of Amalapuram Taluq Police

Station, East Godavari District is registered for the offences

punishable under Sections 143, 144, 147, 148, 151, 452, 436

& 307 read with Section 149 of IPC, Section 32 of Police Act,

1861 and Section 3(2)(v), 3(2)(va) of the Scheduled Castes

and the Scheduled Tribes (Prevention of Atrocities) Act,
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Amendment Act, 2015 (01/2016) and the petitioners herein

were arrayed as accused.


4.       Since the petitioners in these criminal petitions are the

same and the above crimes were registered in relation to

Konaseema agitation, they are being disposed of by this

common order.


5.       The above crimes were registered basing on the reports

lodged by Paradesi Ande, SI of Police, Amalapuram Taluq

police station and Ilakoti Srinivasa Rao, Watchman of local

MLA 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.


6.       The case of the prosecution in brief is 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 together 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,
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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.


7.     Thereafter the mob moved to Collectorate and on the

way to Collectorate when the Police were discharging their

duties, the mob pelted stones on the Police and burnt BVC

collage bus which was used as transport vehicle for the Police.


8.     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.


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

Vanthena), intercepted two RTC buses, damaged them and

set fire to the buses.


10.    The mob further moved towards the house of MLA and

pelted stoned on the house due to which glasses were

damage. When cousin of MLA tried to pacify the matter and

while he was taking video of the situation, the mob poured

petrol on him, but he managed to escape. Then the mob
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entered into the house of MLA, set fire to the motorcycles and

entire furniture in the house including house.

11.   Heard Sri K.Satyanandam, learned counsel for the

petitioners and learned Special Assistant Public Prosecutor for

the respondent-state.

12. Though notice is required to be served on the victim as

per The Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act Amendment Act 2015

(01/2016), since notices to the victim have been served in

Crl.P.Nos.6604 and 6617 of 2022 as well as other crimes, no

prejudice words be caused even if no notice is served on the

victim.

13. Learned counsel for the petitioners, in elaboration to

what has been raised in the grounds, contended that initially

the petitioners name were not figured in the complaints.

Basing on the confessional statement of other accused, their

names were arrayed as accused in these crimes. It is also

contended that the other accused in the present crimes and

other crimes registered in connection with the same incident

were granted pre-arrest bail and sought to consider the

present petitions.

14. Learned Special Assistant Public Prosecutor has

contended that the petitioners are identified as some of the

participants as per data collected from print, electronic media

and footage of CC TV Cameras and videos and their names

are mentioned along with many others by the de facto

complainants in their report. In the mob the petitioners are

also the members, who damaged the public property i.e.,

glasses of the Ambedkar Bhavan and pelted stones against

the police personnel and also a private bus was set to fire,

which was meant for police bandobasth and he also involved

in other sequences of offences took place in furtherance of the

present incident. The investigation is going on. He further

submits that in view of the facts stated above, the petitioners

cannot be granted anticipatory bail since the offences are

grave in nature and there is possibility of influence of other

witnesses. As such the present criminal petition is liable to be

dismissed.

15. 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

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

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......"

16. 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.

17. The Hon‟ble Apex Court in Siddharam

Satlingappa Mhetre Vs. State of Maharashtra and Ors2

laid the following principles which are to be

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

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 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."

18. 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.

19. As can be seen from the entire record prosecution

identified accused basing on CC TV footage, social media

videos and photos. Further except arrayed the name of

accused basing on the confessional statement of other

accused, no specific overt acts were attributed against the

petitioners or any other accused.

20. As pointed out by learned counsel for the petitioners to

attract Section 147 of IPC, there should unlawful assembly.

For better appreciation it is appropriate to extract Section 141

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.

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.

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

Section 141 of IPC for attracting offences under Section 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.

22. The other contention raised by learned Special Assistant

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.]

23. In the present case, 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 of IPC. Specific overt acts were

not attributed against the petitioners.

24. 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.

25. A perusal of the complaints lodged by respective

complainants, shows that the names of petitioners are not

reflected. Even as per the prosecution case, basing on

confession made by other accused regarding the role of

petitioners, petitioners were arrayed as accused in the above

crimes.

26. In Bullu Das Vs. State of Bihar3, while dealing with

the confessional statements made by the accused persons

before a police officer, the Supreme Court held as under:

(1998) 8 SCC 130

"7. The confessional statement, Ex.P5, 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."

27. Considering the facts of this case, since the name of the

petitioners doesn't find place in compliant, no specific overt

act was attributed against the petitioners and extra judicial

confession is weak piece of evidence and as this Court

granted bail to other accused, who stands on same footing,

this Court deems it appropriate to grant bail to the petitioners

by duly taking the apprehensions made by the learned Special

Assistant Public Prosecutor into consideration with the

following conditions:

(i) The petitioners/accused shall be released on bail

in the event of their arrest in connection with Crime Nos.126

and 127 of 2022 of Amalapuram Taluq Police Station, East

Godavari District, on condition of executing a self bond for

Rs.50,000/- (Rupees fifty thousand only) each for each crime

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

the Station House Officer of Amalapuram Taluq Police Station,

East Godavari District.

(ii) The petitioners shall appear before the Station

House Officer, Amalapuram Taluq Police Station, East

Godavari District once in a week i.e. on every Saturday

between 10.00 am and 12 noon till filing charge sheet.

(iii) Apart from that the petitioners shall cooperate

with the investigation and they shall make himself available to

the Investigating Officer whenever required;

iv) The petitioners shall not directly or indirectly

contact the complainants 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 if there is breach of any of the

above conditions, it will be viewed seriously and it also entails

cancellation of bail and in such case prosecution shall move

appropriate application for such cancellation.

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 crimes

and shall not have any bearing in any other proceedings.

Accordingly, these Criminal Petition are allowed.

Consequently, miscellaneous applications pending, if

any, shall stand closed.

_______________________ JUSTICE RAVI CHEEMALAPATI

Date : 27.09.2022

SPP

THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

CRIMINAL PETITION NOs.7691 and 7698 of 2022

Date : 27.09.2022

SPP