Andhra Pradesh High Court - Amravati
Donga Venkanna Babu vs The State Of A.P on 6 September, 2022
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL PETITION Nos.6772, 6775 & 6799 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 Section 438 of the Criminal Procedure Code ('Cr.P.C.' in short), seeking pre-arrest bail, by the petitioner/Accused in the following crimes:
Crime No.126 of 2022 of Amalapuram Taluq Police Station, East Godavari District, registered for the offences punishable under Sections 143, 144, 147, 148, 151, 152, 155 452, 436, 353, 332, 427, 188 and 307 read with 149 of the Indian Penal Code 1908 ('IPC' in short) and Sections 3 and 4 of the Prevention of Damage to the Public Properties 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). The Petitioner is accused No.201.
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 2 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). The petitioner is Accused No.202 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. The petitioner is Accused No.71
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 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 3 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 complaint of the Sub-Inspector of Police, Amalapuram Taluq Police Station, the Watchman of the house of the Hon'ble Transport Minister, and the Village Revenue Officer of 1st and 30th Wards of Amalapuram, the above crimes were registered.
3. Heard Sri Bokka Satyanarayana, learned counsel for the petitioner and Sri Sravan Kumar Naidana, learned Special Assistant Public Prosecutor for the respondent-State.
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4. Though notice is required to be served on the victim as per the Scheduled Castes and the Scheduled Tribes (PoA) Act, Amendment Act, 2015, since notice on the same victim was served in several other Criminal Petitions in this crime as well as in other crimes, arisen out of the same incident, no prejudice would be caused to the victim, if no notice is served in this Criminal Petition.
5. 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 the petitioner is working in Coir Industry for his livelihood and he never involved and he has no knowledge of the incidents alleged. However, the Police foisted false case against the petitioner and implicated him as Accused in the above crimes and he is anticipating his arrest in the said crimes for his no fault.
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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6. On the other hand, the learned Special Assistant Public Prosecutor submitted that involvement of the petitioner is evident from the confession statement 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 1 (2018) 10 SCC 713 : 2018 SCC Online SC 1719 6 the quantified loss caused due to such violence or furnishing security for such quantified loss. ....."
7. Perusal of the complaints discloses that there are no specific allegations against the petitioner.
The Hon‟ble Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors 2 laid the following principles which are to be considered while granting bail.
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the 2 AIR 2011 SC 312 = MANU/SC/1021/2010 7 Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." The contention of the learned counsel for the petitioner is that the 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 he executed illegal acts as per conspiracy of the leaders.
The learned Public Prosecutor specifically urged that the petitioner's custody is important in these crimes, since according to the prosecution, he is active participant in hatching up the plan through whatsapp group and other social media platform, which resulted in 8 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.
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 9 (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.
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 10 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.] 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. 11
8. 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 pre-arrest bail in the event of his arrest in Crime Nos.126, 127 & 139 of 2022 of Amalapuram Taluq/Town Police Station, on his executing self bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties for a like sum each to the satisfaction of the Station House Officer, Amalapuram Taluq/Town Police Station, East Godavari District, in each crime;
(ii) On release, the petitioner shall appear before the Station House Officer, Amalapuram Taluq/Town Police Station, East Godavari District, twice in a week i.e. on every Monday and 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. 12
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 Petition is allowed. Miscellaneous applications, pending if any, shall stand closed.
________________________ JUSTICE RAVI CHEEMALAPATI 6th September, 2022 GBS