Andhra Pradesh High Court - Amravati
Code Of The Criminal Procedure vs State Of on 20 September, 2021
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
I.A.NO.1 of 2021
IN / AND
CRIMINAL PETITION NO.5083 of 2021
COMMON ORDER:-
The Criminal Petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 (for short „Cr.P.C.‟) seeking regular bail to the petitioner/A1 in connection with S.C.No.110 of 2016 on the file of IX Additional District and Sessions Judge, Chittoor arising out of Crime No.130 of 2015 of Chittoor I Town Police Station, Chittoor District registered for the offences punishable under Sections 147, 148, 302, 307, 324, 120(B) read with 149, 212, 216 and 201 of the Indian Penal Code, 1860 (for short „IPC‟) and Sections 25(1B), 25(1AAA) and 27 of the Indian Arms Act, 1959 (for short the „Arms Act‟).
2. I.A.No.1 of 2021 is filed by K.Kishore (LW2) styling himself as victim and cousin of deceased No.1, to permit him to assist learned Assistant Public Prosecutor through his counsel.
3. The case of the prosecution is that in furtherance of previous enmity between A1 and deceased No.2 i.e. Katari Mohan, on 17.11.2015, A1 to A8 assembled in the office premises of A1 and in pursuance of their plan A6 received information over phone about the presence of deceased Nos.1 and 2 in the Mayor‟s chamber, Municipal Corporation, Chittoor through LW36 who was specially employed to pass on the information about movement of deceased 2 Nos.1 and 2. On receipt of said information A1 and A2 wore burkas, carried with a hand bag and sticks handle bag containing vegetables and curry leaves. A1 to A5 entered into Mayor‟s chamber, fired deceased No.1 and hacked deceased No.2 who died while undergoing treatment. Basing on the same above crime is registered and numbered as S.C.110 of 2016.
4. Heard Sri P.Veerareddy, learned Senior Counsel representing M/s Sodum Anvesha, learned counsel for the petitioner, learned Assistant Public Prosecutor for the respondent-State and Sri Posani Venkateswarlu, learned counsel representing Sri P.Sai Surya Teja, learned counsel appearing on behalf of the victim.
5. Learned Senior Counsel submits that the petitioner is innocent and he is falsely implicated in the alleged crime. He submits that on 30.11.2015 he voluntarily surrendered before learned IV Additional Metropolitan Magistrate, Chittoor and since then he is in custody. He submits that the petitioner is none other than the nephew of the Mayor and there are no disputes between them and the prosecution nowhere alleged any mens rea on the petitioner/A1 for committing of such grave offence which clearly shows that the petitioner/A1 was unnecessarily implicated in the crime. He submits that there is delay in registering FIR, which establishes that there are highly influenced persons who are inimical towards the petitioner. He submits that the petitioner is languishing in jail since long period, which is in violation of the directions of the Hon‟ble Apex Court and as there is no possibility of conducting trial in S.C.No.110 of 2016, the 3 petitioner‟s case may be considered for grant of bail. Learned senior counsel relied upon the following judgments of the Hon‟ble Apex Court.
6. The appellant-accused is in custody for a period of over two years facing charges under Sections 420, 467, 468, 471 and 120-B of the Penal Code, 1860 (for short "IPC"). Though charge sheet has been submitted as far back as in May 2015, the trial has not commenced. Even charges have not been framed against the appellant-accused. It is stated at the Bar that there are total of 13 cases against the appellant-accused [8 cases for the offence(s) under IPC and 5 cases for the offence(s) under the Prevention of Money- Laundering Act, 2002 (for short "PMLA")].
...
Be that as it may, having regard to the period of custody suffered and the fact that the trial has not commenced we are of the view that the appellant-accused should be released on bail. We order accordingly. ...
(Sharad T. Kabra v. Union of India1)
7. ... The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that, once a person has been found guilty and sentenced to life imprisonment-, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so 1 2018 (14) SCC 493 4 that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to unjustified? Would it be just at all for the Court to tell a person: "We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?" What confidence would such administration of justice inspire in the mind of the public ? It may quite conceivably happen and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal ? Would it not be an affront to his sense of justice ? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it ? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail 5 in cases where special leave has been granted to the accused to appeal against his conviction and sentence.
(Kashmira Singh v. State of Punjab2)
8. It is no doubt true that this Court has repeatedly emphasized the fact that speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution. The aforesaid article confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law. If a person is deprived of his liberty under a procedure which is not reasonable, fair, or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution. It has also been emphasized by this Court that the procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It is conceded that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt.
(Surinder Singh v. State of Punjab3)
9. It is conceded at the Bar that the sentences passed on all other three accused-appellants have been suspended and they have been ordered to be released on bail and so far as the present appellant before us is concerned his case cannot be distinguished from the cases of other accused-appellants so far as the role assigned to them in the incident is concerned. In such circumstances, we feel, it will 2 1977 (4) SCC 291 3 2005 (7) SCC 387 6 be just and proper not to deny a similar relief to the present appellant as has been allowed to the three others.
(Sham Lal v. State of Haryana4)
10. Learned senior counsel also relied on the order dated 02.11.2016 In CRLAMP No.1687 of 2016 in CRLA No.607 of 2011, wherein the composite High Court of Andhra Pradesh has evolved criteria for grant of bail pending the criminal appeals filed against the conviction for the offences, including the one under Section 302 of IPC, and sentencing of the appellants to life among other allied sentences, are to be considered.
11. Learned senior counsel submits that in view of law laid down by the Hon‟ble Apex Court, as the petitioner is languishing in jail from the last 6½ years, as there is no possibility of concluding the trial, petitioner‟s case may be considered for grant of bail.
12. Sri P.Sai Surya Teja, learned counsel has filed I.A.No.1 of 2021 on behalf of K.Kishore, who is the cousin of deceased No.1 to permit him to assist the Public Prosecutor under Section 24 (8) of Cr.P.C.
13. Sri Posani Venkateswarlu, learned counsel representing Sri P.Sai Surya Teja, submits that the petitioner has got criminal antecedents and he is accused in as many as twelve crimes. He submits that in connection with Crime No.145 of 2007 of I Town Police Station, Chittoor, which was registered for the offences punishable under Sections 302 and 307 of IPC, which was numbered as S.C.330 of 2010 on the file of learned IX Additional Sessions 4 2004 (13) SCC 469 7 Judge, Chittoor, the petitioner was convicted and sentenced to undergo life imprisonment on 12.03.2018, against which the petitioner preferred Crl.A.No.1094 of 2018 and the petition filed by him seeking suspension of sentence and bail was dismissed on 23.10.2018.
14. He submits that the petitioner was also accused in Crime No.15 of 2007 of I Town Police Station, Chittoor registered for the offences under Section 302 and 307 of IPC and pending the same petitioner committed brutal double murder. He submits that in crime No.159 of 2014 of I Town Police Station, Chittoor registered for the offences under Section 353 and 506 read with 34 IPC, he was convicted and sentenced to imprisonment through judgment dated 31.08.2015 passed in C.C.No.58 of 2015 by learned IV Additional Judicial Magistrate of First Class, Chittoor. The same was confirmed by the Principal District and Sessions Judge, Chittoor in Crl.A.No.300 of 2015 on 20.03.2017. He submits that the petitioner is notorious rowdy sheeter and if he is released on bail, there is every likelihood of influencing the witnesses and doing away with the life of the injured. He further submits that A23 who was on bail and who supplied pistol to the petitioner threatened the investigating officers in the present case, as such written reports were submitted and Crime Nos.78 and 79 of 2019 were registered by Chittoor II Town Police Station. He submits that petitioner filed Crl.P.No.4171 of 2017 before the composite High Court with the same pleadings and the same was dismissed. Thereafter he filed SLP (Crl.) No.5490 of 2021 8 and the same was dismissed. Learned counsel for victim placed reliance on Virupakshappa Goud and another vs. State of Karnataka and another5, wherein the Hon‟ble Apex Court held that when the bail application rejected twice and SLP for grant of bail as also dismissed, the principle that accused is presumed to be innocent till found guilty will not apply. He further submits that the earlier bail petitions filed by the petitioner were dismissed and there are no changes of circumstances in between the rejection of last bail to the petitioner. Hence, the petitioner is not entitled for bail.
15. Learned Assistant Public Prosecutor has strenuously opposed the bail application and submits that the petitioner is involved in twelve criminal cases and rowdy sheet is opened against him. Further, he is already convicted and sentence to undergo life imprisonment for the offence under Section 302 of IPC. He submits that if the petitioner is enlarged on bail, he would definitely threaten the witnesses. The Court below has rightly dismissed the bail application and there are no grounds to release the petitioner on bail.
16. Learned senior counsel for the petitioner opposed I.A.No.1 of 2021 filed by K.Kishore styling himself as victim and cousin of deceased No.1 to assist the Public Prosecutor. He submits that according to said K.Kishore, he is cousin of deceased No.1 and he is related to him and in the charge sheet he is referred as witness only. 5 AIR 2017 sc 1685 9 He submits that said K.Kishore cannot have any right of audience and he cannot term himself as victim.
17. It is appropriate to look at the definition of word "Victim", which is defined under Section 2 (wa) of Cr.P.C. which reads thus:
"victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;
18. As rightly argued by learned senior counsel as defined under Section 2 (wa) of Cr.P.C., victim means any person who has suffered any loss or injury in the hands of accused. In this case, just because he is claiming to be the cousin of deceased, cannot be construed as "victim", as defined under Section 2(wa) of Cr.P.C. Accordingly, I.A.No.1 of 2021 is liable to be dismissed.
19. Insofar as granting bail to the petitioner is concerned, no doubt petitioner is in jail from the last 6½ years but at the same time, it is also an admitted fact that petitioner is also accused in a case under Section 302 of IPC and undergoing life imprisonment for the said offence and in the appeal, the application filed seeking suspension of sentence and bail was dismissed. As submitted by learned senior counsel the Hon‟ble Apex Court in catena of cases has emphasized that speedy trial is a fundamental right implicit in Article 21 of the Constitution of India. In this case, the trial could not commence as there has been several rounds of litigation on the appointment of Public Prosecutor. In the case on hand, petitioner has criminal 10 antecedents, where he is accused in twelve cases and now presently undergoing life imprisonment in connection with S.C.No.330 of 2010 on the file of IX Additional Sessions Judge, Chittoor and in the appeal filed by him vide Crl.A.No.1094 of 2018, this Court refused to suspend the sentence and grant bail to him.
19. In these peculiar circumstances of the case, this Court is not inclined to grant bail to the petitioner.
20. Accordingly, the Criminal Petition as well as I.A.No.1 of 2021 are dismissed. However, the trial Court shall conclude the trial as expeditiously as possible.
Consequently, miscellaneous applications pending, if any, shall stand closed.
___________________________ LALITHA KANNEGANTI, J Date: 20.09.2021 IKN/PVD 11 THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI I.A.NO.1 of 2021 IN / AND CRIMINAL PETITION NO.5083 of 2021 DATE: 20.09.2021 IKN/PVD