Janepalli Srinivasa Rao Alias ... vs The State Andhra Pradesh
2024 Latest Caselaw 1038 AP

Andhra Pradesh High Court - Amravati

Janepalli Srinivasa Rao Alias ... vs The State Andhra Pradesh on 8 February, 2024

Author: U. Durga Prasad Rao

Bench: U.Durga Prasad Rao

                                 1




IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

         THURSDAY,THE EIGHTH DAY OF FEBRUARY
           TWO THOUSAND AND TWENTY FOUR

                             PRESENT


 THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO


THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

             CRIMINAL APPEAL NO: 804 OF 2023

Between:
   1. JANEPALLI SRINIVASA RAO ALIAS J.SRINIVASA RAO,
      S/o J.Tata Rao, age 34 years, Permanent resident of Thanelanka
      Village, East Godavari District, A.P.

                                                  ...APELLANT(S)
                               AND
   1. THE STATE ANDHRA PRADESH, rep by Special Public
      Prosecutor, National Investigation Agency, High Court of
      Andhra Pradesh, Amaravathi.

                                                  ...RESPODENTS
JUDGMENT:

(Per Hon'ble Sri Justice U. Durga Prasad Rao)

This Criminal Appeal is filed by the petitioner/accused, under

Section 21(4) of the National Investigation Agency Act, 2008 (for

short, 'the NIA Act, 2008') challenging the order dated 22.09.2023

passed by the learned III Additional District Judge-cum-Special Judge

for SPE & ACB Cases, Visakhapatnam, dismissing the bail

application filed by the petitioner in Crl.M.P.No.2369/2023 in Crime

No.RC/01/2019/NIA/HYD.

2. The factual matrix of the case is thus:

(a) According to the prosecution, the victim during the relevant

period was the leader of opposition political party and presently the

Hon'ble The Chief Minister of the State of Andhra Pradesh. On

25.10.2018, at about 12.00 noon, the victim along with his party

members entered the VIP Lounge of the Visakhapatnam Airport to go

to Hyderabad. The accused, who was working as Waiter in Fusion

Food Restaurant in Airport went to the VIP Lounge to serve tea to the

victim and others and requested for a selfie and when the victim

obliged him, the accused went close to him and attacked him with a

Rooster (Cock) knife and intended to stab on the neck, but when the

victim moved, in the process the accused inflicted an injury on the

upper left arm of the victim. Immediately, the Protocol officers, local

police and CISF personnel came inside and caught the accused and

apprehended him. The victim followed by his party members and

security personnel came outside and after receiving medical treatment

by the duty doctor of the Airport help desk, he left for Hyderabad by

the same scheduled flight and thereafter proceeded to Citi Neuro

Centre, Hyderabad and got himself treated by the Doctors. The

Doctors opined that the injury caused to the victim was simple injury.

(b) While so, on the complaint of the Security Officer of

Visakhapatnam Airport, the Airport police registered a case in

Cr.No.648/2018 against the accused for the offence punishable under

Section 307 IPC and later he was remanded to judicial custody.

(c) While so, the Central Government (Ministry of Home

Affairs, New Delhi) vide its order in F.No.11011/84/2018/NIA dated

31.12.2018, directed the National Investigating Agency (for short, 'the

NIA') to take up investigation in view of the gravity of the offence

that was occurred in the Airport premises. Thus, the NIA has taken

over the investigation and re-registered the aforementioned crime as a

case in RC-01/2019/NIA/HYD dated 01.01.2019 under Section 307

IPC and Section 3A(1)(a) of the Suppression of Unlawful Acts against

Safety of Civil Aviation Act, 1982 (for short, 'the Act 1982') and

proceeded with investigation. The said Agency, on completion of

investigation, laid charge sheet against the accused for the offence

punishable under Section 307 IPC and Section 3A(1)(a) of the Act

1982 and the same was taken cognizance by the learned Metropolitan

Sessions Judge-cum-Special Court for NIA cases at Vijayawada.

(d) While so, the accused earlier filed Crl.M.P.No.741/2019

seeking bail and same was allowed by the learned Special Judge by

order dated 22.05.2019. Aggrieved, the NIA filed Criminal Appeal

No.478/2019 and vide order dated 19.07.2019 a Division Bench of

this Court having found that the trial Court while dealing with the bail

application has not considered the parameters fixed in Section 6A of

the Act, 1982 for granting bail, allowed the criminal appeal and

remanded back the matter to the trial Court to pass an appropriate

orders after hearing all concerned taking into consideration Section

6A of the Act, 1982. Ergo, learned Special Judge restored the Crl.

MP No.741/2019 and heard both parties. Learned Special Judge

having regard to the material produced before him was of the view

that a prima facie case for the offences U/s 307 IPC as well as

offences U/s 3A(1)(a) of the Act, 1982 was made out against the

accused and therefore there was no possibility to say that there were

no reasonable grounds for believing that the accused was not guilty of

the said offences and that he was not likely to commit any offences

while on bail. Learned Special Judge further observed that as per

information produced by NIA, the accused was earlier involved in

another offences in Crime No.48/2017 dated 02.03.2017 for the

offence punishable U/s 323, 506 r/w 34 IPC of Mummidivaram

Village PS, East Godavari District. On such observations learned

Special Judge explicated that he was not satisfied that there were no

reasonable ground for believing that the accused was not guilty of the

offences punishable U/s 3A(1)(a) of the Act, 1982 and accordingly

dismissed the bail application vide his order dated 16.08.2019.

(e) Subsequently, the accused filed another bail application in

Crl.M.P.No.2369/2023 and the said application was also dismissed by

order dated 22.09.2023. Hence the instant criminal appeal by the

accused.

3. The respondent filed counter and opposed the criminal appeal.

4. Heard learned counsel for the petitioner Sri Srinivasulu P and

Sri B. Narasimha Sarma, learned Additional Solicitor General,

representing NIA.

5. It should be noted that the NIA has charge-sheeted the accused

for the offence U/s 307 IPC and Section 3A(1)(a) of the Act, 1982.

As stated supra, the earlier when bail was granted to the accused in

Crl.M.P.No.741/2019, on appeal this Court set aside the bail order and

remanded the matter to the trial Court to hear and consider the matter

in terms of Section 6A of the Act, 1982 and pass orders. Thereafter

the trial Court re-opened the matter and observed that the material

available before the Court made out prima facie case against the

accused for the offence punishable U/s 3A(1)(a) of the Act, 1982

along with offence punishable U/s 307 IPC, 1860. Then the trial

Judge considered the rigor of Section 6A of the Act, 1982. Section

6A of the Act, 1982 reads thus:

"6A. Provision as to bail.--

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless--

(a) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail"

(2) The limitations on granting of bail specified in sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974)"

The above provision explicates that when a person is accused of

offences punishable under the Act, 1982 and seeks for bail, and when

the public prosecutor opposes the bail application, Section 6A ordains

that the Court can order release of the accused on bail provided it is

satisfied that there are reasonable grounds for believing that he is not

guilty of such offence and that he is not likely to commit any offence

while on bail. Having regard to this provision, the trial Court

observed that the material produced by the NIA made out prima facie

case for the offences punishable U/s 307 IPC as well as offence

punishable U/s 3A(1)(a) of the Act, 1982 against the accused and

therefore there was no possibility to say that there were no reasonable

grounds for believing that the accused was not guilty of such offences

that he was not likely to commit any offences while on bail. In

essence, the trial Court's observation was that the case of the accused

does not fall within the ambit of Section 6A(1)(b) of the Act, 1982 to

enlarge him on bail. The bail was refused mainly on the said ground.

Subsequently in the Criminal M.P.No.2369/2023 filed by the accused

which is a renewed bail application, the trial Court made similar

observations as follows:

"In the present case there is a specific allegation that the accused contravent the provisions U/Sec.3A of the suppression of unlawful Acts against safety of Civil Aviation Act, 1982. The trial is commenced, one witness was examined. At this stage it cannot be concluded basing on the 161 Cr.P.C statements of the witnesses or basing on the oral arguments of the petitioner that there are no grounds to believe that the petitioner is not guilty of the offneces charged against him i.e., U/Sec.3A of suppression of unlawful Acts against safety of Civil Aviation Act, 1982. It is

also pertinent to note that earlier in Crl.M.P.741/2019 this Court discussed the provisions U/Sec.6A of suppression of unlawful Acts against safety of Civil Aviation Act, 1982 and observed "that the available material makes out prima facie case for the offence punishable U/Sec.307 IPC as well as the offence punishable U/Sec.34A(1)(a) of suppression of unlawful Acts against safety of Civil Aviation Act, 1982 against the accused and there is no possibility to say that there are no reasonable grounds for believing that the accused is not guilty of such offence." Therefore in view of the earlier discussion it can be safely concluded that the accused is not entitled for the release of bail.

That is how in the previous orders bail was rejected to the

accused.

6. Now the argument of learned counsel for the petitioner is

dipronged. Firstly, learned counsel agued that the facts in the case do

not attract offence U/s 307 IPC and also the offence U/s 3A(1)(a) of

the Act, 1982 and trial Court on wrong premise denied the bail. His

argument is that even if the prosecution case is accepted to be true, it

only reveals that the accused by using the cock fight knife committed

an act of violence and nothing more. Learned counsel strenuously

argued that the injury did not result in grievous hurt or death so as to

attract the offence U/s 3A(1)(a) of the Act, 1982. His submission is

that mere using of any device, substance or weapon and committing

an act of violence without there being likelihood of causing grievous

injury or death will not attract offence U/s 3A of the Act, 1982. He

submits that entire Section 3A (1)(a) has to be read conjunctively to

know whether the act of violence committed by the accused has the

likelihood of causing grievous hurt or death to bring the offence

within the fold of Section 3A. Learned counsel would submit that in

the FIR registered immediately after the alleged offence, it was only

alleged as if the accused stood beside the victim on his left side

seeking for selfie and attacked with a small knife on his upper left

hand below the shoulder and on that he sustained a bleeding injury on

his hand. Learned counsel argued that except that in the FIR it was

not specifically alleged that the accused tried to inflict injury on the

neck of the victim and when he averted, in the process the accused

inflicted injury on the left upper hand of the victim. The said

allegation was made only in the charge-sheet so as to bring the

offence within the sphere of Section 3A of the Act, 1982. Learned

counsel would thus conclude that whether the accused tried to make

an attempt on the life of the victim and whether the violence allegedly

committed by him with the help of device, substance or weapon was

likely to cause grievous injury or death is a matter of fact to be

decided at the end of the trial but as of now the indisputable facts such

as FIR and wound certificates will not suggest an inference that the

act of the accused was likely to cause grievous hurt or death of the

victim. Therefore, in terms of Section 6A, he would submit, the Court

can be satisfied that there are reasonable grounds to believe that the

accused is not guilty of "such offence" as narrated in Section 3A. He

lamented that unfortunately the trial Court has not properly applied

the facts on hand to the provisions of Section 3A and Section 6A in

right perspective and unjustly dismissed the bail application.

Secondly, he argued that the petitioner has been languishing in

jail since more than five years and though charge-sheet was filed in

the year 2019 listing about 56 witnesses, the trial was not commenced

immediately but started belatedly in March, 2023 and so far PW1-the

complainant alone was examined. Learned counsel would submit that

when the matter came up for the evidence of the victim i.e., LW2, a

petition in Crl MP No.100/2023 was filed by him with a prayer to

appoint an Advocate Commissioner / or to record evidence through

video conference or by any electronic mode and the case is being

adjourned from time to time for hearing the said petition and thereby

the delay is caused in trial proceedings.

Learned counsel would further submit that the victim also filed

another Crl MP.No. 101/2023 before trial Court with a prayer to direct

further investigation in the matter but the Special Court after hearing

both sides dismissed the said petition. Aggrieved the petitioner filed

Crl.P No.8057/2023 before the High Court of A.P. and by order dated

17.10.2023 all further proceedings including appearance of the victim

were stayed by this Court.

Thus learned counsel would conclude that in view of above

events there is no immediate possibility of trial being completed

within a reasonable time though as per the provisions of law trial has

to be conducted day-to-day. Learned counsel would submit that in

view of long incarceration of the petitioner in jail and due to the

prolonged trial, his fundamental right to liberty is denuded on one

hand and he is deprived of defending his case effectively by briefing

his Advocate and thereby fair trial became a casualty in his case. He

thus prayed to allow the criminal appeal and grant bail.

7. In oppugnation and in tune with the counter averments, Sri B.

Narasimha Sarma, learned Additional Solicitor General argued that

the petitioner committed grave offence of causing violence by using

weapon against a public functionary in broad day light that too in a

high security premises of an Airport and caused panic among general

public and the incident was witnessed by the party members, CISF

security personnel and others and the accused was overpowered and

apprehended immediately. In that view, it is naïve to contend that the

petitioner did not commit an offence punishable U/s 3A(1)(a) of the

Act, 1982. Learned counsel further argued that as per Section

3A(1)(a), suffice if the act of violence is 'likely' to cause grievous

hurt or death and it is not at all mandatory that the act must result in

grievous hurt or death. He argued that in view of the cogent material

showing that the petitioner attempted to attack on the neck of the

victim, there was every likelihood of causing grievous hurt or death to

the victim and therefore the offence was clearly made out. In

previous bail applications the trial Court has rightly taken into

consideration all these aspects and dismissed his bail applications and

therefore it cannot be said that bail was unjustly refused.

Nextly, on the delay aspect learned Additional Solicitor General

argued that there are no laches on the part of NIA in conducting trial.

Charge sheet was promptly filed in the year 2019 and thereafter the

trial could not be taken up immediately due to the prevalence of

COVID-19 PANDEMIC. After restoring normalcy, the trial

commenced and PW1 was examined and at that stage LW2 - the

victim filed Crl.MP No.100/2023 to appoint an Advocate

Commissioner to record his evidence through video conference or by

any electronic mode and the said petition is pending for enquiry.

Learned counsel further submitted that the victim also filed

Crl.MP.No.101/2023 seeking further investigation in the matter.

However, the said petition was dismissed and aggrieved, he filed

Crl.A.No.8057/2023 before the High Court wherein interim stay of all

further proceedings in the case was granted and as soon as the said

matter is disposed of, the prosecution will proceed with the trial. He

further argued that since the trial is in crucial stage, if granted bail, the

petitioner may flee and thereby trial will be stalled. He thus prayed to

dismiss the criminal appeal.

8. The point for consideration is whether there are merits in the

Criminal Appeal to allow ?

9. POINT: We gave our anxious consideration to the above

respective submissions. The petitioner is charge-sheeted U/s 307 IPC

and Section 3A(1)(a) of the Act, 1982. The offence U/s 307 IPC may

not be a hurdle for considering the bail application because charge

sheet was filed in the year 2019 itself, accused has been in custody all

along and trial is also commenced. Further, it is not the case of the

prosecution that if granted bail he will tamper with the evidence. The

only apprehension made by learned Additional Solicitor General is

that the accused may flee and may not be available for trial, which

apprehension can be taken care if the petitioner ultimately deserves

bail. In that view, perhaps the trial Court in the impugned order has

not given importance and discussed about the offence U/s 307 IPC

being a hurdle for considering the bail application.

10. Then coming to Section 3A of Act, 1982, the said offence reads

thus:

"3A. Offence at airport.--

(1) Whoever, at any airport, unlawfully and intentionally, using any device, substance or weapon,--

(a) commits an act of violence which is likely to cause grievous hurt or death of any person; or

(b) destroys or seriously damages any aircraft or facility at an airport or disrupts any service at the airport, endangering or threatening to endanger safety at that airport, shall be punished with imprisonment for life and shall also be liable to fine.

(2) Whoever attempts to commit, or abets the commission of, any offence under sub-section (1) shall also be deemed to have committed such offence and shall be punished with the punishment provided for such offence."

The precise accusation against the petitioner is that he

unlawfully and intentionally used in the Airport a device or substance

or weapon and committed an act of violence which is likely to cause

grievous hurt or death. Bail for this offence is governed by Section

6A of the Act, 1982. It lays down that notwithstanding anything

contained in the Cr.P.C, no person accused of an offence punishable

under this Act shall be released on bail, where the public prosecutor

opposed the application unless the Court is satisfied that there are

reasonable grounds for believing that he is not guilty of such offence

and that he is likely to commit any offence while on bail. In this

context, the argument on behalf of the petitioner is that there are no

reasonable grounds for believing that the petitioner is guilty of the

offence U/s 3A(1)(a) because the violence allegedly committed by

him did not result in grievous hurt or death nor was it likely to cause

grievous hurt or death in view of the factual circumstances. It is

argued that the accused allegedly attacked with a small knife used for

cock fights and the injury caused was on the left upper hand which is

not a vital part. No intention to kill or cause grievous injury is alleged

in the FIR though such an allegation was purposefully made

subsequently in the statement of some of the witnesses. It is argued

that when the violence caused did not likely to result in grievous

injury or death the Court can safely believe that he is not guilty of

offence U/s 3A(1)(a) of Act, 1982.

11. In the light of above argument, we perused the available material.

FIR No.648/2018 of Airport PS, Visakhapatnam shows that report

was lodged by Sri Dinesh Kumar, Assistant. Commandant, CISF

within short time after the incident on 25.10.2018. As rightly argued

by learned counsel for the petitioner, in the FIR he only stated that in

the VIP Lounge the accused asked for a selfie with the victim and at

that time the accused stood with the victim on his left side and

attacked with a small knife on the left upper hand below the shoulder

and thereby he sustained a bleeding injury on his hand. It is germane

to note that in the FIR there was no specific mention that the accused

wielded the knife on the neck of the victim to kill him. We are not

oblivious of the fact that a FIR is not an encyclopedia of all the facts

relating to a crime but at the same time, an attack with an intention to

kill is not a negligible fact to be missed in the FIR. Further, in the

evidence of PW1-Dinesh Kumar also, he did not depose that the

accused made an attack on the victim with an intention to kill him. Of

course, this aspect was mentioned by some other witnesses in their

statement. However, we do not find such a version in the earlier

statement. Further, as per the wound certificate the injury is a simple

injury caused over the posterior aspect of left upper arm. In the

evidence of PW1, the knife seized from the accused is marked as

MO1 which is described as a small fixed knife around 2.5 inches

(with blade and handle).

From the above available facts, for the purpose of considering

the bail application, we are satisfied that the violence allegedly

committed by the accused neither caused grievous hurt or death nor is

likely to cause grievous hurt or death. As rightly argued by the

petitioner, mere using the device, substance or weapon and

committing the act of violence is not the be all and end all of the

offence U/s 3A unless such violence is likely to cause grievous hurt or

death of any person which is not the case in the present instance.

12. The next argument of the petitioner is concerned, admittedly the

petitioner has been languishing in jail since more than five and half

years. Though charge sheet was filed in the year 2019 trial could not

be commenced till 2023, of course due to COVID-19 PANDEMIC for

some time. Admittedly, the victim filed Crl.MP No.100/2023 to

appoint an Advocate Commissioner to record his evidence through

video conference and the same is pending for consideration. He filed

another Crl.MP No.101/2023 seeking further investigation in the

matter and same was dismissed and in resultant Crl.P.No.8057/2023,

this Court granted interim stay of all further proceedings in SC

No.5/2023. Thus for whatever reason, without the fault of the

petitioner the trial is being delayed.

13. Here it must be noted that right to speedy trial is implicit in the

broad sweep and content of Article 21 of Constitution of India. A

quest for speedy trial shall not remain as a desolate mirage but serve

as an oasis. Expeditious trial and freedom from detention are part of

human rights and a judicial system which allow incarceration of men

and women for long periods of time without trial otherwise amounts

to denying human rights to under trials, more so, when the delay was

not attributable to the accused in jail. The constitutional imperative of

speedy trial was delineated by a Constitutional Bench of Apex Court

in Abdul Rehman Autulay v. R.S. Nayak1 wherein the Supreme

Court inter alia laid the following propositions:

(1) Right to speedy trial is implicit in the broad sweep and content of Article 21.

(2) That unless the procedure prescribed by law ensure a speedy trial it cannot be said to be reasonable, fair or just. Expeditious trial and freedom from detention are part of human rights and basic freedoms and that a judicial system which allow incarceration of men and women for long periods of time without trial must be held to be denying human rights to such under trials.

The above decision was approved by another Constitutional

Bench in P. Rama Chandra Rao v. State of Karnataka2. Thus there

can be no demur that speedy trial within a reasonable time is the

legitimate expectation of an accused incarcerated in jail like the

present petitioner. However, for whatever reasons, the completion of

the trial is not possible in the near future for which the petitioner

cannot be attributed with any fault. Therefore, we find force in the

submission of learned counsel for the petitioner that due to long

1992(1) SCC 225

AIR 2002 SC 1856

incarceration, the petitioner is not able to defend his case in an

effective manner apart from languishing in jail. We did not find any

fervent argument of learned Additional Solicitor General that if

granted bail the petitioner will be in a position to tamper with the

evidence. On the other hand, it is argued that he may flee and not

available for the trial and the case being a sensational one, the

petitioner may gabble untruthful facts before media which may

adversely effect the smooth sailing of the trial process. In our view,

these apprehensions can be taken care of.

14. Accordingly, this Criminal Appeal is allowed setting aside the

order in Crl.MP.No.2369/2023 in SC No.126/2019 (Crime

No.RC/01/2019/NIA/HYD) passed by learned Special Judge for trial

of NIA cases-cum-III Additional District and Sessions Judge,

Visakhapatnam and the petitioner/accused is directed to be enlarged

on bail on his executing a personal bond for Rs.25,000/- (Rupees

twenty five thousand only) with two sureties each for like sum to the

satisfaction of trial Court. On release, the accused shall mark his

appearance before SHO, Mummidivaram Police Station, East

Godavari District on every Sunday between 10:00 AM and 5:00 PM

until further orders. He shall cooperate with the trial Court for smooth

completion of trial. He is further directed not to give any statements

before print and electronic media. The trial Court shall proceed with

trial without being influenced by the observations made in this order.

As a sequel, interlocutory applications pending, if any, shall

stand closed.

__________________________ U. DURGA PRASAD RAO, J

___________________________ KIRANMAYEE MANDAVA, J 08.02.2024 KRK / MVA

HE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO

THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

CRIMINAL APPEAL NO: 804 OF 2023

08th February, 2024

krk/mva