Andhra Pradesh High Court - Amravati
Since The vs State Of Bihar 2 on 2 September, 2022
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THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL PETITION Nos.6874, 6878, 6882,
6925 & 6923 OF 2022
COMMON ORDER:
Since the petitioner in all the Criminal Petitions is one and the same and these petitions arise out of the 'Konaseema' incident, they are heard together and are being disposed of under a common order.
These Criminal Petitions are filed under Sections 437 & 439 of Criminal Procedure Code ('Cr.P.C.' in short), seeking regular bail, by the petitioner/Accused in the following crimes:
Crime No.127 of 2022 of Amalapuram Taluq Police Station, East Godavari District, registered for the offences punishable under Sections 143, 144, 147, 148, 151, 152, 452, 436 and 307 read with 149 of the Indian Penal Code 1908 ('IPC' in short), Section 32 of the Andhra Pradesh Police Act and Sections 3(2)(v) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (PoA) Act, Amendment Act, 2015 (01/2016).
Crime No.138 of 2022 of Amalapuram Town Police Station, East Godavari District, registered for the offences punishable under Sections 307, 143, 144, 147, 148, 151, 152, 332, 336, 427, 188 and 353 read with 149 of IPC, Sections 3 and 4 of the Prevention of 2 Damage to Public Property Act, 1984 and Section 32 of the Police Act, 1861.
Crime No.139 of 2022 of Amalapuram Town Police Station, East Godavari District, registered for the offences punishable under Sections 307, 143, 144, 147, 148, 151, 152, 332, 336, 427, 188, 353, 324, 435 read with 149 of IPC, Sections 3 and 4 of Prevention of Damage to Public Property Act, 1984 and Section 32 of the Police Act, 1861.
Crime No.140 of 2022 of Amalapuram Town Police Station, East Godavari District, registered for the offences punishable under Sections 341, 143, 144, 147, 148, 151, 336, 435, 188 read with 149 of IPC, Sections 3 and 4 of Prevention of Damage to Public Property Act, 1984 and Section 32 of the Police Act, 1861.
Crime No.141 of 2022 of Amalapuram Town Police Station, East Godavari District, registered for the offences punishable under Sections 307, 143, 144, 147, 148, 452, 436, 435 and 188 read with 149 of IPC and Section 32 of the Police Act, 1861.
2. The facts of the case, in brief, are 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 for submitting objections pursuant to issuance of Gazette notification with regard to change of name of 3 Konaseema District, by violating the order under Section 144 of Cr.P.C. and Section 30 of the Police Act. The mob started rally at Kalasam Centre, 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.
Thereafter the mob moved to Collectorate and on the way to Collectorate, when Police were discharging their duties, the mob pelted stones on the Police and also burnt BVC college bus which was used as transport vehicle for Police.
Further, when the Police tried to control the mob at Collectorate, the mob pelted stones on Police personnel due to which some of the Police sustained injuries and glasses of Collectorate Office and Ambedkar Bhavan were damaged.
Thereafter, the mob proceeded to Red Bridge (Erra Vanthenna), intercepted two RTC buses, damaged them and set fire to the buses.
The mob further moved towards the house of Hon'ble Minister. When the mob shouted and beat police persons, AR constable fired rounds in air, but agitators attacked police personnel and staff of the Hon'ble Minister, caused damage to the furniture and set fire to the house of the Minister and later proceeded to the house of local MLA.
Basing on the complaints of the Watchman of the house of the Hon'ble Minister, the Home Guard-268, the Village Revenue Officer, 4 Amalapuram, the Driver of APSRTC, Amalapuram Depot and cousin of the Hon'ble MLA, respectively, the above crimes were registered.
3. Heard Sri Bokka Satyanarayana, learned counsel for the petitioner and Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor for the respondent-State.
4. Learned Counsel for the petitioner submitted that six crimes were registered in connection with the incident said to have been occurred on 24.05.2022 at Amalapuram i.e. Crime Nos.138, 139, 140 and 141 of 2022 of Amalapuram Town Police Station and Crime Nos.126 and 127 of Amalapuram Taluq Police Station.
It is stated that initially petitioner's name was not figured in the said crimes. But, later he was implicated in one crime on the basis of the confession statement of one of the arrested accused and was arrested in the said crime and his arrest was shown on PT warrants in the remaining crimes.
It is also contended that some of the accused in these crimes and the other crimes registered in connection with the same incident, were granted pre-arrest/regular bail and sought to consider the present petitions also on similar lines, on any conditions that may be imposed.
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5. On the other hand, the learned Special Assistant Public Prosecutor submitted that involvement of the petitioner is evident from the confession statements of the other arrested accused, CC TV footages, social media videos and photographs taken at the scene of offence. It is further submitted that investigation is yet to be completed.
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 granting bail to the petitioner, 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. ....."1
(2018) 10 SCC 713 : 2018 SCC Online SC 1719 6
6. A perusal of the complaint discloses that initially the petitioner's name was not reflected in the above crimes, but, subsequently, he was implicated on the basis of the confession statement of one of the arrested accused and was arrested in one crime and shown his arrest on PT warrant in the other crimes.
The contention of the learned counsel for the petitioner is that petitioner herein was falsely implicated in these crimes due to political differences whereas according to the prosecution, petitioner is active participant in the rally and they executed illegal acts as per conspiracy of their leaders.
The learned Public Prosecutor specifically urged that petitioner's custody is important in this case, since according to the prosecution, they are active participants in hatching up the plan through whatsapp group and other social media platform, which resulted in occurrence of large-scale violence and execution of other related illegal acts as conspired.
As pointed out by learned counsel for the petitioner to attract Sections 146 and 147 of IPC, there should unlawful assembly. For better appreciation it is appropriate to extract Sections 141, 146 and 147 of IPC.
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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.
146. Rioting.--Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
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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.
Thus, there must be unlawful assembly as defined under Section 141 of IPC for attracting offences under Sections 146 and 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.
The other contention raised by learned 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.] 9 Further, 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 IPC. Specific overt acts were not attributed against the petitioner.
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. Photographs filed by prosecution do not show that mob is armed with weapons.
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 petitioner has 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.
In Bullu Das Vs. State of Bihar 2 , while dealing with the confessional statements made by the accused persons before a police officer, the Supreme Court held as under:
"7. The confessional statement, Ex. 5, stated to have been made by the appellant was before the police officer in charge 2 (1998) 8 SCC 130 10 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."
7. Taking the facts and circumstances of the case into consideration and considering the submissions of the learned Counsel for the petitioner that in similar matters, this Court has granted bail, this Court feels it appropriate to consider granting bail to the petitioner herein on the following conditions, duly considering the apprehension of the learned Special Assistant Public Prosecutor:
(i) The petitioner shall be released on bail on his executing self bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties each for a like sum to the satisfaction of the Judicial Magistrate of First Class, Amalapuram, East Godavari District, for each crime;
(ii) On release, the petitioner shall appear before the Station House Officer, Amalapuram Town/Taluq Police Station, East Godavari District, twice in a week i.e. on every Monday and 11 Thursday between 9.00 a.m. and 12.00 noon, till filing of the charge sheet; and
(iii) The petitioner shall not directly or indirectly contact the complainant 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 petitioner shall scrupulously comply with the above conditions and in case of infraction of the same, the prosecution is at liberty to move appropriate application for cancellation of bail.
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 finding in this order be construed as expression of opinion only for the limited purpose of considering bail in the above Criminal Petition and shall not have any bearing in any other proceedings.
Accordingly, the Criminal Petitions are allowed. Miscellaneous applications, pending if any, shall stand closed.
________________________ JUSTICE RAVI CHEEMALAPATI 2nd September, 2022 GBS