Andhra Pradesh High Court - Amravati
Nakka Nagireddy vs The State Of Ap on 11 November, 2024
APHC010366002024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3365]
(Special Original Jurisdiction)
MONDAY ,THE ELEVENTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
CRIMINAL PETITION NO: 5843/2024
Between:
Nakka Nagireddy ...PETITIONER/ACCUSED
AND
The State Of Ap ...RESPONDENT/COMPLAINANT
Counsel for the Petitioner/accused:
1. GOUTHAMI SURAPAREDDY
Counsel for the Respondent/complainant:
1. MUTYALA SOBHANADRI NAIDU
2. PUBLIC PROSECUTOR
The Court made the following:
2
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL PETITION No.5843 of 2024
ORDER:
This Criminal Petition, under Section 438 of Cr.P.C. (New
Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023), is
filed by the petitioner/A.1 seeking anticipatory bail in connection
with Crime No.73 of 2024 of Inavole Police Station, Palnadu
District, registered for the offences punishable under Sections
326(g), 351(3) and 109(1) read with 3(5) of BNS and Sections
3(1)(z) and 3(2)(va) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act.
2. Heard arguments of Sri Virupaksha Dattatreya, the learned
counsel for the petitioner and the learned Assistant Public
Prosecutor for respondent-State.
3. Perused the record.
4. On 12.08.2024 a written information of the victim was
registered as F.I.R. and the investigation is in progress. The
allegations are that the victim is a woman and yanadi by caste
and therefore belonging to scheduled caste. The Government
had granted her Ac.0.1½ cents of site and in the recent past she
erected a hut in it and has been living. This petitioner and his
associates have been demanding her to remove the hut and were
threatening her with dire consequences. On 11.08.2024 in the
mid night at about 1:00 A.M. she noticed that her hut was under
fire and she came out of the house and the entire hut and all her
articles were burnt. Suspecting that this petitioner and his
associates did this she lodged the written information.
5. It is stated that this petitioner is A.1 and he does not belong
to scheduled caste or scheduled tribe. It is also stated that the
other accused belong to various castes falling within the definition
of scheduled caste or scheduled tribe.
6. This petitioner filed a petition seeking anticipatory bail and
the learned Special Sessions Judge-cum-IV Additional Sessions
Judge, Guntur by an endorsement dated 17.08.2024 refused to
entertain the petition stating that there is a bar under Section 18
of the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short, 'the SCs and STs Act') for
anticipatory bails.
7. It is thereafter the petitioner has moved this petition
claiming that he is falsely implicated in this case as he belonged
to YSR Congress Party and the de facto complainant is
sympathizer of ruling party. With a view to taint his reputation and
to take revenge against him, this false case is filed. It is further
mentioned in the bail petition that the brother of A.7 with a view to
take revenge against the de facto complainant burnt the hut of the
de facto complainant and openly proclaimed it and a video
indicating the same is available and the pen drive could be filed
for verification.
8. Since the offences alleged against this petitioner include
Sections 3(1)(z) and 3(2)(va) of the SCs and STs Act and since
the petitioner has filed this petition seeking anticipatory bail
requesting this Court to exercise its concurrent original jurisdiction
in cases of bails and anticipatory bails, the question that has
come up for consideration is whether such jurisdiction is available
with this Court in view of Section 14A of the SCs and STs Act.
The said provision reads as below:
"14A. Appeals:--(1) Notwithstanding anything contained
in the Code of Criminal Procedure,1973 (2 of 1974), an
appeal shall lie, from any judgment, sentence or order, not
being an interlocutory order, of a Special Court or an
Exclusive Special Court, to the High Court both on facts and
on law.
(2) Notwithstanding anything contained in sub-section
(3) of section 378 of the Code of Criminal Procedure,
1973 (2 of 1974), an appeal shall lie to the High Court
against an order of the Special Court or the Exclusive
Special Court granting or refusing bail.
(3) Notwithstanding anything contained in any other law for
the time being in force, every appeal under this section shall
be preferred within a period of ninety days from the date of
the judgment, sentence or order appealed from: Provided
that the High Court may entertain an appeal after the expiry
of the said period of ninety days if it is satisfied that the
appellant had sufficient cause for not preferring the appeal
within the period of ninety days: Provided further that no
appeal shall be entertained after the expiry of the period of
one hundred and eighty days.
(4) Every appeal preferred under sub-section (1) shall, as far
as possible, be disposed of within a period of three months
from the date of admission of the appeal."
9. It is in the context of the above question, the learned
Assistant Public Prosecutor and the learned counsel for victim
submitted arguments and cited legal authorities. It is undisputed
that by virtue of Sections 18 and 18A of the SCs and STs Act, the
jurisdiction of the Courts to entertain anticipatory bail petitions is
legally inhibited. It is in that context of the matter the learned
counsel for petitioner submits that in those cases where the
allegations do not prima facie indicate an offence under the
Special Act jurisdiction to entertain anticipatory bail is still vested
with the Court. In support of this, the learned counsel cited
Subhash Kashinath Mahajan v. The State of Maharashtra 1.
10. It is to be noticed that the principle of law laid down by their
Lordships is a principle that is applicable to every Court and
Courts are empowered to examine whether the allegations in the
case prima facie indicate an offence under the SCs and STs Act
or not. The above ruling by itself does not answer the question
raised in this petition. It is in that regard, the learned counsel for
petitioner submits that in State of Uttar Pradesh by virtue of an
amendment to the Code of Criminal Procedure Section 438 of
Code of Criminal Procedure was omitted. However, a writ petition
under Article 226 of the Constitution of India was held
maintainable. It is argued that the High Court holds jurisdiction
and discretion to entertain and grant anticipatory bail even in
those cases where anticipatory bail was made inapplicable. In
support of it, the learned counsel cited Hema Mishra v. State of
(2018) 6 SCC 454
U.P.2. In the said ruling, their Lordships held that a claim for pre-
arrest protection is neither a statutory right nor a right guaranteed
under Articles 14, 19 or 21 of the Constitution of India. Bail by
itself cannot be claimed as a matter of right under the Code of
Criminal Procedure except for bailable offences. The aggrieved
party can only seek a remedy and it is in the discretion of the
Court to grant it or not. It is further stated that in normal
circumstances an accused person would not be entitled to claim a
relief under Article 226 of the Constitution of India and the said
constitutional power cannot be converted into a second window
for the relief which is consciously denied by the statute. Having
stated all the above principles, their Lordships were further
pleased to hold that the power under Article 226 of the
Constitution of India is a constituent power and cannot be
trampled by the statute and in appropriate cases in appropriately
constituted proceedings such power could be utilized in those
circumstances. In the present case, the petition is not one filed
under Article 226 of the Constitution of India. Therefore, any
more deliberations concerning the power of this Court under
Article 226 of the Constitution of India in granting anticipatory
(2014) 4 SCC 453
bails do not fall for consideration. In this State anticipatory bail is
available and by the statute its applicability is restricted for
offences under some special Acts. Even going by the ruling
referred above, what was specifically omitted cannot be permitted
to pass through by exercising constitutional powers as a matter of
regularity.
11. The valiant submission of the learned counsel for petitioner
is that a bail and anticipatory bail are two different things.
Sections 18 and 18A of the SCs and STs Act referred to
anticipatory bail. Section 14A of the SCs and STs Act used the
word bail and has not mentioned the word anticipatory bail.
Therefore, it is only in those cases where regular bail is prayed for
the concurrent jurisdiction of the High Court is inhibited and only
in appeal the High Court can entertain the plea for bail. When it
comes to anticipatory bail, since there is no reference to it in
Section 14A of the SCs and STs Act, this Court still holds the
original jurisdiction to entertain the anticipatory bail at least in
those cases where prima facie no case is made out under the
SCs and the STs Act. This very attractive argument of the
learned counsel when put to scrutiny does not survive. The
question of bail presupposes detention or custody of the person.
It is only in those cases where a person is in detention or custody
an order of bail could be obtained for his release. In a case
where a person is arrested he prays for regular bail. Even in
cases of prayers for anticipatory bail, the order comes into effect
only after the person is arrested and not otherwise. The only
difference is that an order is obtained in advance in cases of
anticipatory bail and an order is obtained from the Court after
arrest in cases of regular bail. The timing at which a prayer is
made and an order is made have no relevance when it comes to
operation of these orders as in both the cases they come into
operation only in those cases where a person is in custody or
detention. Viewed from that angle, the word bail is one that
encompasses anticipatory bail also. Section 14A of SCs and STs
Act seems to have used the word bail thereby implying any type
of bail. In that view of the matter, the argument of the learned
counsel for petitioner cannot be sustained.
12. In all fairness it has to be mentioned that the learned
counsel for petitioner cited Lokesh v. State of Karnataka 3. That
was a case where the question raised was whether a criminal
petition or an appeal is maintainable against an order of a Special
Court or exclusively Special Court granting or refusing bail.
Section 14A of the SCs and STs Act was considered and finally it
was held that only an appeal is maintainable to the High Court
against an order of the Special Court or exclusive Special Court
when it granted or refused to grant bail. Even in those cases
where prima facie case was not made out, the initial application
should invariably be before the Special Court and the jurisdiction
of the High Court is only on appellate side in terms of Section 14A
of the SCs and STs Act. It was finally held that it is not open for
the High Court to exercise the original or concurrent jurisdiction
under Sections 438 and 439 of Code of Criminal Procedure.
13. Learned counsel for victim cited K.M.Basheer v. Rajani
K.T.4. The Kerala High Court in that ruling held that there is no
more concurrent original jurisdiction for the High Court to
entertain anticipatory bails by virtue of the interdict contained in
Section 14A of the SCs and STS Act.
14. In fact, this Court in Deepak Kumar Tala v. The State of
Andhra Pradesh by order dated 22.10.2024 in Crl.P.No.6487 of
2024 had already taken a view that the cases alleging offences
2021 SCC OnLine Kar 15742
under the SCs and STS Act an application for anticipatory bail
can be filed only before the Special Court or the exclusive Special
Court and not before the High Court. The High Court has neither
concurrent jurisdiction under Section 438 of Code of Criminal
Procedure nor original jurisdiction under Section 482 of Code of
Criminal Procedure. In the light of what is stated above, the
present petition is misconceived and the prayer made is not
maintainable before this Court.
15. In the case at hand, the application made by the present
petitioner was returned by the Court below. Law enjoins duty to
entertain an application and then express its view whether there
was a prima facie case attracting the provisions under the SCs
and STs Act or not and then dispose of the application in
accordance with law. In that view of the matter, the petitioner is
permitted to represent his petition, if he so desires, before the
same Court and on such representation, the learned Court has to
deal with it in accordance with law.
16. In the result, this Criminal Petition is dismissed.
2022 SCC OnLine Ker 4470
Mark a copy of the order to the Registrar Judicial in
entertaining such anticipatory bail petitions.
________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 11.11.2024
Ivd
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL PETITION No.5843 of 2024
Date: 11.11.2024
Ivd
