Andhra Pradesh High Court - Amravati
Sri Vpnr Prasad vs The State Of Andhra Pradesh on 26 May, 2022
THE HON'BLE Dr. JUSTICE K. MANMADHA RAO
CRIMINAL PETITION NO.3796 OF 2022
ORDER:-
This criminal petition is filed under Section 438 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") seeking to enlarge the petitioners on bail in the event of their arrest in connection with Crime No.111 of 2022 on the file of Chittoor I Town Police Station, Chittoor District for the offences punishable under Sections 5 read with 8, read with 10 of the Andhra Pradesh Public Examinations (Prevention of Malpractices and Unfair Means) Act, 1997 & 408, 409, 201 and 120-B IPC and Section 65 of Information Technology (IT) Act.
When the matter was previously heard on 19.05.2022, learned Additional Public Prosecutor submitted that learned Additional Advocate General would appear in this matter and requested to post the matter to this day i.e., on 26.05.2022. Therefore, the matter is posted to this day under the caption „for orders‟. Today when the matter is taken up for hearing, learned Additional Public Prosecutor again sought time due to ill-health of learned Additional Advocate General.
This Court is of the considered view that ample opportunities are already given to the respondents to hear the matter. Since the matter is posted under the caption „for orders‟ from 18.05.2022 onwards and was adjourned at request of learned Additional Public Prosecutor, the request of the learned Additional Public Prosecutor to adjourn the matter again is refused and this Court is 2 inclined to dispose of the matter based on the arguments advanced so far.
2. The statement of the complainant/informant in FIR is as under:
"this is a case of leakage and Divulge of SCC Public Examinations First Language Telugu, by invigilators in neglect manner of breach of trust criminally, which occurred on 27.04.2022 in between 09.30 AM to 12.45 PM, which came to light in front of Narayana College, C.B. Road, Greamspet, Chittoor Mandal & District and reported in PS on same day at 1.50 PM by Complainant S. Purushotham, age 55 years, Main Street, Ramnagar Colony, Chittoor Town, who is being District Educational Officer of Chittoor, while he is on supervision duty over the SSC Public Examination, 2022, he learnt through Whats App as Telugu Question Paper is Malpractice by some unknown offenders and received the same question paper photo copy, further he cross checked the question paper which is exact question paper of the day."
3. It is the version of the petitioners that they are not shown as accused in the above crime but police came to the office of the Society situated at D.No.14/72, Haranathapuram, Nellore and enquired about the petitioners i.e., the petitioners herein are the members of the General Body of the Narayana Educational Society, Nellore, a society registered under the Societies Registration Act, 2001 with Registration No.319/1996. The present crime was initially registered for the offences under Section 5 r/w 8 and 10 of A.P. Public Examination (Prevention of Malpractice &Unfair Means) Act, 1997 and under Section 408 IPC only, later the police added Section 409 IPC, 201 and 120-B IPC and Section 65 of the I.T. Act. As such, the petitioners are 3 apprehending arrest in the above crime. Therefore, they sought for grant of pre arrest bail.
4. Heard Mr. Dammalapati Srinivas and Mr. Venkateswarlu Posani, learned Senior counsels appearing for the petitioners and learned Additional Public Prosecutor along with learned Assistant Public Prosecutor appearing for the respondent-State.
5. On hearing, learned Additional Public Prosecutor appearing for the respondent-State would submit that the respondents are investigating the matter against the suspects basing on the statements recorded from A.1 to A.8 as admitted by the petitioners. He opposed for grant of pre arrest bail to the petitioners as they are not entitled for the same and further admitted that the respondents have not initiated any coercive action against the petitioners as of now. He relied upon a judgment of Hon‟ble Supreme Court reported in JASWANTBHAI M. SHETH Versus ANAND V. NAGARSHETH AND OTHERS1 , wherein it was held that Grant of High Court's satisfaction as to existence of sufficient reasons with the applicant for apprehending arrest, held, is a condition precedent. Hence, the applicant for pre- arrest bail in a murder case was neither named in the FIR nor was subsequently made an accused, held, he did not have sufficient reasons to entertain the requisite apprehension. Therefore, his application to High Court for pre-arrest bail during continuance of investigation, held, was premature.
6. Learned Senior counsel appearing for the petitioners would submit that the facts of the above case are different and in 1 (2000) 10 Supreme Court Cases 7 4 the instant case the apprehension of arrest is there and the respondents are going to arrest the petitioners. Moreover, as per the submissions made by the learned Additional Public Prosecutor, the petitioners are having every sort of apprehension with regard to their arrest. As such the above citation is not applicable to the present facts of the case.
7. Further, learned Senior counsel has relied upon another decision of Hon‟ble Apex Court reported in THE STATE OF ANDHRA PRADESH Vs. BIMAL KRISHNA KUNDU & ANR.2, wherein it was held that "in Section 438 of the Code on the ground that the offences involved are not punishable with death or imprisonment for life."
8. Learned Senior Counsel submitted that the facts of the above case are not related to the present facts of the case. Further, contended that Section 15 of Andhra Pradesh Public Examinations (Prevention of Malpractices and Unfair Means) Act, 1997 in overriding Act of other laws, reads as under:
"15. Act to override other laws - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force."
9. Learned Senior counsel further stated that once the crime is registered against the petitioners are suspected with the offences punishable under Section 5 r/w 8, r/w 10, they cannot be held liable for the offences punishable under the Indian Penal Code and it was clearly discussed in the order of this Court in W.P.No.10882 of 2021 that when the special enactment i.e., I.T 2 1997 (8) SCC 104 5 Act covers the criminal act and the offender, that the offender gets out of the net of the Indian Penal Code. Learned Senior counsel further submits that as per Section 5 r/w 8 r/w 10 of Andhra Pradesh Public Examinations (Prevention of Malpractices and Unfair Means) Act, 1997 registered against the Accused No.1 to 9 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend upto seven years.
10. Further, learned Senior Counsel for the petitioners limited his submission seeking a direction to the police to follow the procedure prescribed under Section 41A Cr.P.C. and the guidelines issued by the Hon‟ble Apex Court in ARNESH KUMAR V. STATE OF BIHAR3.
11. In view of the submissions made by both the learned counsels and in view of facts and circumstances of the case, without touching the merits of the case, and it is prima facie observed that A.9 was arrested basing on the statements of A.1 to A.8, similarly the petitioners are apprehending for the arrest.
12. It is to be noted that as per decision of Hon‟ble Supreme Court reported in PRAKASH SINGH & OTHERS v. UNION OF INDIA AND OTHERS4, it was held that "the quality of criminal justice system in a country, to a large extent depends upon the working of police force." In another decision reported in JOGINDER KUMAR v. STATE OF U.P.5. The law of arrest is one of balancing individual rights, liberties and privileges on the one hand and individual duties, obligations and responsibilities on the other. Arrest of a person should not be merely on suspicion about 3 (2014) 8 SCC 273 4 2006(8) SCC 1 5 AIR 1994 SC 1349 6 the person‟s complicity in the crime and the Police Officer must be satisfied about the justification of such arrest on the basis of some investigation.
13. It is pertinent to mention here that in a case reported in Arnesh Kumar‟s case (Supra 3), wherein it was held that "a Police Officer that no arrest is made without reasonable satisfaction reached after some investigation as to the genuineness of allegations." And the Hon‟ble Supreme Court in a case in Suo Motu Writ Petition (Civil) No.01/2020, observed that as a first measure, this Court, being the sentinel on the qui vive of the fundamental rights, needs to strictly control and limit the authorities from arresting accused in contravention of guidelines laid down by this Court in Arnesh Kumar‟s case (supra 3) during pandemic. It may be relevant to quote the same : Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate does not authorize detention casually and mechanically and also held that cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
14. In view of the foregoing discussion, this Court is of the opinion that the maintainability of the Sections registered against the petitioners has to be decided by adjudicating the matter at length of the trial but not on the bail applications. Hence, this Court deems it appropriate to give a direction to the Investigating Officer to follow the guidelines prescribed by the Hon‟ble Apex Court in Arnesh Kumar‟s case (supra 3) and the procedure prescribed in Section 41 A Cr.P.C.
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15. Accordingly, the Criminal Petition is disposed of directing the Investigating Officer to follow the procedure prescribed in Section 41A Cr.P.C. and the guidelines issued by the Hon‟ble Apex Court in Arnesh Kumar‟s case (supra 3) and further not to take any coercive action while examining the petitioners.
___________________________________ Dr. JUSTICE K. MANMADHA RAO Date : 26.05.2022 Gvl/akn 8 THE HON'BLE Dr. JUSTICE K. MANMADHA RAO CRIMINAL PETITION NO.3796 OF 2022 Date : 26.05.2022 Gvl/akn