Andhra Pradesh High Court - Amravati

Kandala Penchalaiah, vs The State Of Andhra Pradesh, on 1 May, 2024

APHC010168282024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)

WEDNESDAY, THE FIRST DAY OF MAY
TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO

CRIMINAL PETITION NO: 2416/2024

Between:

Kandala Penchalaiah, and Others ...PETITIONER/ACCUSED(S)

AND

The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT

Counsel for the Petitioner/accused(S):

1. KAMBHAMPATI RAMESH BABU

Counsel for the Respondent/complainant:

1. PUBLIC PROSECUTOR (AP)

The Court made the following ORDER:

1. This Criminal Petition, under Section 438 of Cr.P.C., has been filed by

the Petitioners/A.1
.1 and A.2,
A.2, seeking anticipatory bail, in Crime No.
No.25 of 2024

of Manubolu Police Station,
tation, SPSR Nellore District.

2. A case has been registered against the Petitioner
Petitioners and others for the

offences punishable under Sections 3(1)(r), 3(1)(s) of SC/ST (POA) Act and

Sections 450, 354, 324, 323, 506, 509, 290 r/w 34 of Indian Penal Code, 1860

(for short 'the IPC').
2

3. The Prosecution's case, in brief, is that approximately one and a half

months prior to the date of offence, the Complainant had cut down a Juliflora

(Karra Thumma) tree and placed its thorny branches beside the road. About

one week before the incident, A.1 and A.2 also placed the thorny branches

beside the Complainant's house. On 16.03.2024, around 8:00 PM, the

Complainant confronted A.1 and A.2 regarding the placement of the thorny

bushes beside his house. In response, A.1 and A.2, angered by the inquiry,

verbally abused the Complainant using derogatory language related to his

caste and proceeded to physically assault him by inflicting swelling injuries on

his left hand with an iron pipe and punching his cheeks and head with their

hands. During the altercation, the Complainant's wife intervened, but A.2

assaulted her by pushing her to the ground, and kicking her with his legs,

while A.1 attempted to attack them with an iron rod. Fearing for their lives, the

Complainant and his wife sought refuge in their house, but A.1 and A.2

criminally trespassed into their residence, continuing their attempt to harm

them. A.1 and A.2 fled from the scene of offence upon the arrival of

neighbours. Subsequently, the Complainant's wife shifted him to the

Government Area Hospital, Gudur, for medical treatment. Following his

discharge from the hospital, on 17.03.2024, he was readmitted to the same

hospital due to severe pain in his hand.

4. The learned counsel representing the Petitioners strongly asserts their

innocence, stating that they have been unfairly targeted and falsely roped in

this case to imprison them; the allegations have been fabricated to punish the
3

Petitioners, who are supporters of the Telugu Desam Party, at the behest of

local leaders from the ruling party; Section 450 of IPC has been invoked

strategically to prevent the Petitioners from benefiting from the procedural

safeguards provided under Section 41A of Cr.P.C; the Petitioners maintain

that they have fixed abode and are fully ready to cooperate with the

investigation.

5. On the contrary, the learned Assistant Public Prosecutor vehemently

opposes the granting of bail to the Petitioners on the basis that the

investigation remains incomplete.

6. In Mahipal V. Rajesh1, the Hon'ble Apex Court held that it is necessary

for the Court while considering a bail application, to assess whether, based on

the evidentiary record, there existed a prima facie or reasonable ground to

believe that the accused has committed the crime. It is settled law that when

granting bail, a detailed examination of the evidence and elaborate

documentation of the case's merits has not to be undertaken. That did not

mean that whilst granting bail, some reasons for prima facie concluding why

bail was being granted did not have to be indicated.

7. It is settled law that while considering the prayer for grant of anticipatory

bail, the accusation's nature and gravity and the accused's exact role must be

properly comprehended before arrest is made. If there is some doubt as to the

genuineness of the Prosecution, the ordinary course of events is that the

accused is entitled to an order of anticipatory bail. The Court must adequately

1
(2020) 2 SCC 118
4

exercise its jurisdiction to protect the personal liberty of a citizen. It is also a

well-accepted principle that bail is the rule and the jail is the exception. Arrest

should be the last option, and it should be restricted to those exceptional

cases where arresting the accused is imperative based on the facts and

circumstances of that case.

8. This Court views the power to authorize detention as a very solemn

function. It affects the liberty and freedom of citizens and needs to be

exercised with great care and caution. The attitude of arresting first and then

proceeding with the rest is despicable. It has become a handy tool for police

officers who lack sensitivity or act with oblique motives.

9. The law presumes an accused to be innocent until his guilt is proven.

As a presumably innocent person, he is entitled to all the fundamental rights,

including the right of liberty, guaranteed under Article 21 of the Constitution of

India.

10. In Dr.Subhash Kashinath Mahajan v. State of Maharashtra and

another2, the Hon'ble Supreme Court held that:

79.2 There is no absolute bar against grant of anticipatory bail in cases
under the Atrocities Act if no prima facie case is made out or where on
judicial scrutiny the complaint is found to be prima facie mala fide. We
approve the view taken and approach of the Gujarat High Court in Pankaj
D. Suthar v. State of Gujarat 3 and N.T.Desai v. State of Gujarat 4 and
clarify the judgments of this Court in State of M.P. v Ram Kishna
Balothia5 and Manju Devi v. Onkarjit Singh Ahluwalia6.

2
(2018)6 SCC 454
3
(1992) 1 Guj LR 405
4
(1997)2Guj LR 942
5
(1995) 3 SCC 221 : 1995 SCC (Cri) 439
5

11. Now, it is required to be seen whether anticipatory bail application is

maintainable in view of the bar contained in section 18 of the SC/ST Act.

12. It is useful to reproduce section 18 of the SCs/STs Act, which reads as

under:

18. Section 438 of the Code not to apply to persons committing an
offence under the Act.- Nothing in section 438 of the code shall apply
in relation to any case involving the arrest of any person on an
accusation of having committed an offence under this Act."

13. A reading of Section 3(2)(v) of the Act makes it clear that merely

because a person who does not belong to a member of a Scheduled

Caste/Scheduled Tribe commits any offence under the Indian Penal Code

punishable with imprisonment for a term of 10 years or more against a person

belonging to a Scheduled Caste/Scheduled Tribe, the offence under section

3(2)(v) would not get attracted. Section 3(2)(v) was amended by the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Amendment Act, 2016 which came into effect on 26th January 2016. The

words "......... on the ground that" under section 3(2)(v) have been substituted

with "....... Knowing that such person is a member of a Scheduled

Caste/Scheduled Tribe". Thus, subsequent to the amendment sine qua non

for application of Section 3(2)(v) is an offence must be committed by a person

who does not belong to a member of a Scheduled Caste/Scheduled Tribe

against a person belonging to a Scheduled Caste/Scheduled Tribe with the

knowledge that such person is a member of Scheduled Caste/Scheduled

6
(2017) 13 SCC 439 : (2017)4 SCC (Cri)662
6

Tribe. In the absence of averment to that effect, the offence under section

3(2)(v) would not get attracted.

14. In Hitesh Verma v. State of Uttarakhand and another7, the Hon'ble

Apex Court referred the decision in Khuman Singh v. State of Madhya

Pradesh8, wherein the Hon'ble Apex Court held that:

In a case for applicability of Section 3 (2) (v) of the Act, the fact that the
deceased belonged to Scheduled Caste would not be enough to inflict
enhanced punishment. This Court held that there was nothing to suggest
that the offence was committed by the appellant only because the
deceased belonged to Scheduled Caste. The Court held as under:

15. As held by the Supreme Court, the offence must be such so as to
attract the offence under Section 3 (2) (v) of the Act. The offence must
have been committed against the person on the ground that such person
is a member of Scheduled Caste and Scheduled Tribe. In the present
case, the fact that the deceased was belonging to "Khangar" -
Scheduled Caste is not disputed. There is no evidence to show that the
offence was committed only on the ground that the victim was a member
of the scheduled Caste and therefore, the conviction of the appellant-
accused under Section 3 (2) (v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act is not sustainable.

15. In Prathvi Raj Chauhan v. Union of India and others 9, the Hon'ble

Apex Court referred the decision in Vilas Pandurang Pawar and Anr 10 ,

wherein, the Hon'ble Apex Court held that:

10. The scope of Section 18 of the SC/ST Act read with Section 438 of
the Code is such that it creates a specific bar in the grant of anticipatory
bail. When an offence is registered against a person under the provisions
of the SC/ST Act, no court shall entertain an application for anticipatory
bail, unless it prima facie finds that such an offence is not made out.
Moreover, while considering the application for bail, scope for
appreciation of evidence and other material on record is limited. The
court is not expected to indulge in critical analysis of the evidence on
record. When a provision has been enacted in the Special Act to protect

7
(2020) 10 SCC 710
8
2019 SCC OnLine SC 1104
9
(2020) 4 SCC 727
10
(2012) 8 SCC 795
7

the persons who belong to the Scheduled Castes and the Scheduled
Tribes and a bar has been imposed in granting bail under Section 438 of
the Code, the provision in the Special Act cannot be easily brushed aside
by elaborate discussion on the evidence."

In light of the above settled legal position, now I appreciate the

contentions raised on behalf of both sides.

16. The learned counsel for the Petitioners contends that even as per the

entire complaint, no case is substantiated against the Petitioners; there are no

allegations that warrant the charges under sections 3(1)(r) and 3(1)(s) of the

SC/ST (POA) Act. Learned counsel further contends that the Petitioners have

been falsely implicated to prevent them from obtaining anticipatory bail; the

invocation of Section 450 of IPC was intended to deprive the Petitioners of the

procedural benefits outlined in Section 41A of Cr.P.C. In light of the above

contentions, I have gone through the material placed on record to evaluate the

validity of the Petitioners' stand.

17. In the report, it is specifically alleged that the Petitioners/A.1 and A.2

verbally abused the Complainant using derogatory language related to his

caste.

18. For better appreciation, section 450 OF IPC and Section 3(1)(r) of

SC/ST Act are extracted hereunder:

Section 450 of IPC: House-trespass in order to commit offence
punishable with imprisonment for life - Whoever commits house-
trespass in order to the committing of any offence punishable with
imprisonment for life, shall be punished with imprisonment of either
description for a term not exceeding ten years, and shall also be liable
to fine.

Section 3 Punishments for offences atrocities.
8

[(1) Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe,--
.........................................

r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;

.....................................

... shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.

19. As seen from the record, the offences under sections 354, 324, 323,

506, 290 r/w 34 of IPC were also registered against the Petitioners. For the

sake of convenience, the relevant provisions are extracted in a tabular form as

follows:

1. Section 354 of IPC Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing 1 or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine

2. Section 324 of IPC When a person commits an offence of voluntarily causing hurt by dangerous weapons and means under Section 324 of Indian Penal Code then such person shall be punished with imprisonment for a period of three years, or with fine. Such imprisonment and fine will depend upon the nature of the offence

3. Section 323 of IPC Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

4. Section 506 of IPC Punishment for criminal intimidation. --Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either

description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.

5 Section 290 of IPC Punishment for public nuisance in cases not otherwise provided for. Whoever commits a public nuisance in any case not otherwise punishable by this Code, shall be punished with fine which may extend to two hundred rupees

Given that all the offences are punishable by imprisonment for a term of

seven years or less, there arises doubt regarding the applicability of section

450 of IPC and section 3(2)(v) of SC/ST Act.

20. The accusations leveled against the Petitioners indicate that they

trespassed into the Complainant's house and inflicted harm. The medical

certificate presented by the learned Assistant Public Prosecutor indicates that

the Defacto Complainant suffered from multiple small abnormal pains and

swelling over the left forearm. The doctor's opinion suggests that the Defacto

Complainant sustained a simple injury.

21. In Rajulapati Ankababu V. State of Andhra Pradesh (Criminal

Petition No.7468 of 2017, dated 25.10.2017), this Court in the similar facts of

the case observed as follows:

31. The core issue which falls for consideration at this juncture is whether the Investigating Officer has to follow the procedure as contemplated under Section 41A of Cr.P.C., while conducting investigation in respect of the offences alleged to have been committed under the provisions of the SC/ST Act.

32. The SC/ST Act came into force with effect from 30.1.1990. Section 41A of Cr.P.C., was introduced in the year 2010. The Parliament was very much aware of the provisions of the SC/ST Act at the time of introducing Section 41A of Cr.P.C., in the year 2010. Had it been the intention of the Parliament to exclude the application of Section 41A of Cr.P.C., in respect of the offences committed under the SC/ST Act, the same might have been reflected in the

Cr.P.C. There is no specific provision under the SC/ST Act, excluding the application of Section 41 of Cr.P.C. The Parliament amended the provisions of the SC/ST Act, by way of Amendment Act 1 of 2016 by introducing certain provisions. The Parliament is very much aware of existence of Section 41A of Cr.P.C., at the time of making suitable amendments to the SC/ST Act. It is a settled principle of law that the provisions of Cr.P.C., are applicable to the Special Acts so far as the investigation, inquiry and trial are concerned, unless there is specific provisions under the Special Act. Even under the amended Act, there is no provision which specifically excludes the application of Section 41A of Cr.P.C., in respect of offences committed under the SC/ST Act.

33. Having regard to various provisions of the Cr.P.C., and the SC/ST Act referred supra, and the principle enunciated in Arnesh Kumar, I am of the considered view that Section 41A Cr.P.C., in letter and spirit, is applicable to the offences committed under the SC/ST Act if the offence is punishable with imprisonment for a term which may be less than seven years or which may extend upto seven years, whether with or without fine.

22. It is not the Prosecution's case that the Petitioners did not cooperate

with the investigation, and they not available for interrogation. There is no

indication of a likelihood that the Petitioners would abscond from the

jurisdiction of the Court. The Petitioners have expressed willingness to

cooperate with the investigation agency. The object of the bail is neither

punitive nor preventative.

23. In Siddharam Satlingappa Mhetre V. State of Maharashtra 11 , the

Hon'ble Apex Court laid down certain factors and parameters that must be

considered while dealing with anticipatory bail. It further held as follows:

113. Arrest should be the last option, and it should be restricted to those exceptional cases where arresting the accused is imperative based on the facts and circumstances of that case. The Court must carefully examine the entire available record, particularly the allegations directly attributed to the accused, which are corroborated by other material and circumstances on record.

(2011) 1 SCC 694

24. Given the facts and circumstances of the case, this Court believes that

even if the Petitioners are granted pre-arrest bail, there cannot be any

apprehension for the Prosecution that they will tamper with the evidence. The

material placed on record discloses that the Petitioners have a permanent

abode. It is not the Prosecution's case that the Petitioners would flee away

from the jurisdiction of the Court. The facts do not warrant custodial

interrogation of the Petitioners in the nature of the accusations. Thus, there is

a prima facie case in favour of the Petitioners. Granting anticipatory bail to the

Petitioners would not impede the ongoing investigation.

25. Given the existing disputes between the parties, there is no reasonable

apprehension of tampering with the witnesses. The material placed on record

disclosed that the Petitioners have a permanent abode. It is not the

Prosecution's case that the Petitioners would flee away from the jurisdiction of

the Court. It is also not the Prosecution's requirement of Petitioner's custody

to conduct further investigation.

26. Upon considering the gravity of offence and nature of accusations made

against the Petitioners, this Court finds that there is a reasonable ground for

granting anticipatory bail to the Petitioners/A.1 and A.2 under certain

conditions:

(i) Petitioners/A.1 and A.2 are directed to surrender before the Station House Officer, Manubolu Police Station, SPSR Nellore District, within two (2) weeks from today and upon their surrender, they shall be released on bail upon furnishing a personal bond for Rs.20,000/- (Rupees Twenty Thousand Only)

with two sureties for a like sum each to the satisfaction of the concerned Investigating Officer.

(ii) Following their release, Petitioners shall appear before the concerned Investigating officer once in a week i.e., on every Sunday between 10.00 AM and 01.00 PM for a period of three (03) months.

(iii) The Petitioners/Accused shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any Investigating or Police Officer and shall cooperate with the investigating officer.

27. Accordingly, the Criminal Petition is allowed.

28. It is explicitly clarified that the observations made in this Order are

preliminary and pertain solely to the decision on the present application

without indicating a stance on the case's merits. The Investigating Agency is

affirmed to have the freedom to investigate without being influenced by the

observations in this Order.

Miscellaneous pending applications, if any, shall stand closed.

_______________________ T. MALLIKARJUNA RAO, J Date: 01.05.2024.

SAK

THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO

CRIMINAL PETITION NO: 2416/2024

Date: 01.05.2024