Andhra Pradesh High Court - Amravati
Arigela Venkata Rama Rao vs The State Of Andhra Pradesh on 12 July, 2022
HON'BLE SRI JUSTICE SUBBA REDDY SATTI
CRIMINAL PETITION NOs. 4169 and 4526 OF 2022
COMMON ORDER:-
These Criminal Petitions are filed under Section 438 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") to enlarge the petitioners on bail in the event of their arrest in connection with crime Nos.126 and 127 of 2022 of Amalapuram Taluq Police Station, East Godavari District respectively.
2. Arigela Venkata Rama Rao is arrayed as A5 and A42 and Moka Venkata Subba Rao is arrayed as A33 and A16 in the above crimes.
3. Crime No.126 of 2022 is registered for the offences punishable under Sections 307, 143, 144, 147, 148, 151, 152, 155, 452,436, 353, 332, 427 and 188 read with 149 of IPC, Sections 3 and 4 of PDPP Act and Sections 3(2)(v), 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015 (for short SC&ST (POA) Act).
4. Crime No.127 of 2022 is registered for the offences punishable under Sections 307, 143, 144, 147, 148, 151, 152, 155, 452,436, 353, 332, 427 and 188 read with 149 of IPC, Sections 3 and 4 of PDPP Act and Sections 3(2)(v), 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015 (for short SC&ST (POA) Act). 2
5. The above crimes were registered basing on the reports lodged by S.I. of Police, Amalapuram Taluka Police Station and one Illakoti Srinivasa Rao, who is working as watchman under Transport Minister, P. Viswaropp respectively, with regard to the incident that took place on 24.05.2022 pursuant to the notification issued by the Government by changing the name of Konaseema District as Dr.B.R.Ambedkar Konaseema District.
6. The facts of above crimes are inter-linked. Therefore, they are considered and decided by this common order.
The facts of the case in brief are:
7. 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.
8. 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 collage bus which was used as transport vehicle for the Police.
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9. Further when Police tried to control the mob at Collectorate, the mob pelted stones on Police personnel due to which some of the Police sustained injuries, damaged the glasses of Collectorate Office and Ambedkar Bhavan.
10. Thereafter, the mob proceeded to Red Bridge (Erra Vanthena), intercepted two RTC buses, damaged them and set fire to the buses.
11. 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 complainant and his staff; attacked staff of Hon‟ble Minister, caused damage to the furniture and set fire to the house and later proceeded to the house of local MLA. Basing on the complaint lodged by Sub Inspector of police FIR 126 of 2022 was registered. Basing on compliant lodged by watchman of the house, FIR 127 of 2022 was registered.
12. petitioners‟ two in numbers, are arrayed as one of the accused in the above crimes.
13. Heard Sri N. Ravi Prasad, learned counsel for the petitioner and Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor (hereinafter referred to as „Public Prosecutor‟) for the respondent-state. Sec 15-A (3) of the Act was complied with. Learned public prosecutor filed memo to that effect. 4
14. Learned counsel for the petitioners submits that the petitioners are innocent and they never participated in the offence. He submits that Arigela Venkata Rama Rao is a Reporter in Greater News Telugu Daily and he will not yield to such cheap politics and Moka Venkata Subba Rao is doing business at his shop at the time of alleged incident. Infact, M.Venkata Rao cut cake on the eve of changing the name of Konaseema District and his photo was published in Sakshi Newspaper. He submits that petitioners are nothing to do with the alleged offence.
15. He submits that to the given set of allegations in the FIRs and other statements, the provisions of SC & ST (POA) Act are not attracted. He submits that to attract the provisions of SC & ST (POA) Act, the prosecution has to prima facie establish that the alleged offence was committed on the ground that the victim belongs to SC community.
16. Learned counsel submits that in neither of the above FIRs the role of petitioners was stated except mentioning their names. He submits that except using the word „mob‟ no specific overt acts are attributed against any of the accused including petitioners herein. He submits that petitioners did not participate in the rally and in the absence of specific overt acts, petitioners are entitled to pre-arrest bail. He further submits that even if it is assumed that petitioners have participated in the alleged offence, there is no 5 specific role attributed to them. He submits that petitioners are falsely implicated in the above crimes.
17. Learned counsel for the petitioners further submits that word „unlawful assembly‟ is not applicable to the mob. As per Section 141 of IPC a group consisting of five or more persons with a common object of committing an offence will be designated as unlawful assembly. He submits that in the present case FIRs do not disclose any such common object or intention on the part of the mob and when there is no such common intention all the persons who were present at the time of alleged incident cannot be arrayed as accused. Therefore, Sections 147 and 148 of IPC are not applicable to the present case.
18. The learned counsel further urged that ingredients of Section 307 IPC would not attract against the petitioners. The allegation of the prosecution that being aware that the drivers were inside the bus, the mob set fire to the buses, and it amounts to attempt to murder would not apply to the facts of the case unless prosecution specifically attributes role to the petitioners. In this regard learned counsel submits that the drivers were not inside the bus and the buses were open at the time of setting fire and the same is evident from the videos. He submits that it was not the intention of mob to kill drivers, some miscreants joined the mob and destroyed public property. Therefore, at the most offences under PDPP Act are attracted against those persons. He submits 6 that to attract Section 307 of IPC, there should be intention and knowledge to kill any person and as could be seen from the averments of FIRs, except Police personnel no other individual sustained injuries, as such ingredients of Section 307 IPC are not attracted. He also would submit that the allegations of setting fire to the house and furniture of hon‟ble minister would not constitute offence under Sec 307 IPC. He submits that except Section 307 of IPC all other offences are bailable and only to deprive the accused from getting bail said Section is intentionally added.
19. Learned counsel further submits that so far 120 accused were arrested and no weapons were seized from their possession. He also submits that so far Police have not filed petition seeking custodial interrogation of the arrested accused.
20. Learned counsel for the petitioners disputed the appearance of petitioners in the photographs which are placed before the Court by the prosecution. He also would submit that other accused who stands on similar footing were granted bail. Hence, he prays to grant pre-arrest bail to the petitioners.
21. Learned Public Prosecutor raised objection qua maintainability of this petition under Section 438 of Cr.P.C. in view of bar under Section 18 of SC & ST (POA). He submits that petitioners actively participated in conducting rally along with others. Having associated with others caused huge damage to the 7 law and order and created panic situation in the public. He further submits that the petitioners being leaders provoked other agitators to damage the public and private properties by setting fire and caused injuries to Police officials who were on duty. In the process, with the active support of petitioners, other agitators set fire to the furniture and house of Hon‟ble Minister.
22. Learned Public Prosecutor places reliance on Kodungallur Film Society and Another v. Union of India and Others1, and submits that the Hon‟ble Apex Court held that if a group/organization has staged a protest or demonstration resulting in damage to property, their office-bearers should, within 24 hours, present themselves before police station for being questioned, failing which (without sufficient reason), they should be proceeded against as suspects and legal process be initiated for declaring them as absconders and arrested persons may be granted conditional bail upon depositing quantified loss caused by violence and if loss is yet to be quantified, Judge hearing bail may quantify tentative loss.
23. He submits that if the petitioners are granted bail, there is every possibility of tampering the evidence and influence the witnesses. He further submits that there is every possibility of creating differences among the people belonging to SC and ST community and OC community and it will be difficult for the 1 2018 (10) SCC 713 8 prosecution to identify the remaining accused who participated in the chain of offences.
24. He further submits that investigation is in progress and petitioner‟s presence is required for custodial interrogation to secure call data of other accused, to identify other persons who actually participated in the offence, to collect whatsapp data of the mobile numbers of the accused and to secure presence of the absconding accused. Hence, he prays to dismiss the bail.
25. I have given my anxious consideration to the submission made on either side and perused the record.
26. The record reveals that pursuant to notification issued by the Government about change of name of Konaseema District as Dr.B.R. Ambedkar Konaseema District a call was given by JAC Konaseema District Sadhana Samithi for submission of representations. In pursuance of the same large number of people gathered at Clock Tower Centre and proceeded to Collectorate. When Police tried to prevent them from entering the premises, mob pelted stones on the Police and caused injuries to them. Further the mob also damaged Collectorate Office as well as Ambedkar Building and also lit fire to buses.
27. As can be seen from the record police/prosecution identified accused basing on CC TV footage, social media videos and photos. 9
28. Learned Public Prosecutor raised a contention regarding maintainability of this petition under Section 438 of Cr.P.C. in view of bar under Sections 18 and 18(A) of the SC & ST (POA) Act.
29. As observed supra, a perusal of the complaint indicates that more than 1000 people went to Collectorate and later went to the house of Hon‟ble Minister and later to the house of local MLA. It also indicates that Hon‟ble Minister was not in the house and the mob, when restrained, beat the Police as well as guards at the house and poured petrol on the flexies and trespassed into the house, damaged computers, sofa sets, other furniture and set fire to the house. The complaint does not indicate that since the Minister belongs to SC community the mob intentionally went to the house of the Minister and committed act as alleged. None of the complaints either in Cr.No. 126 or 127 of 2022, it was mentioned that because the Hon‟ble Minister belonged to a particular community or his watchman belonged to a particular community, the offence took place.
30. In Khuman Singh v. State of Madhya Pradesh2, the Hon‟ble Apex Court held that unless an offence is committed "only on the ground" that the victim was member of SC community, an offence under Section 3(2)(v) and 3(2)(va) will not be made out. 2 AIR 2019 SC 4030 = 2020 (18) SCC 763 10
31. In Prathvi Raj Chauhan v. Union of India (referred supra), the Hon‟ble Apex Court held as under:
11. Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by section 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions.
12. The court can, in exceptional cases, exercise power under section 482 Cr.PC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.
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32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail.
33. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament."
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32. A perusal of the above expressions of the Hon‟ble Apex Court would indicate that sine qua non for application of 3(2)(v), 3(2)(va) of SC & ST (POA) is that an offence must be committed against a person or property on the ground that such person is member of Schedule Caste or Schedule Tribe. In the case on hand, as narrated supra, mob initially went to the Collectorate office and later went to the Hon‟ble Minister‟s house and later to the house of local MLA. Further setting fire to the flexi of Hon‟ble Minister or to the furniture in his house does not attract an offence under 3(2)(v) and 3(2)(va) of SC & ST (POA) Act, unless such an act was intentionally done on the ground that the Hon‟ble Minister belonged to SC or ST. However, mob, going by the complaint, damaged furniture and set fire since the house belonged to Minister and in fact, going by complaint mob also damaged house of local MLA. Thus, in the absence of necessary ingredients to attract Sec 3(2)(v) and 3(2)(va) of SC & ST (POA) Act, the bar under Section 18 and 18(A) does not apply to the facts of the case. Hence, in the opinion of this Court, petition under Sec 438 Cr.P.C. is maintainable.
33. The other point before this Court is whether the petitioners are entitled to Anticipatory Bail?
34. The Hon‟ble Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors3 laid following factors 3 AIR 2011 SC 312 = MANU/SC/1021/2010 12 which are to be taken into consideration while granting pre- arrest 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 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 13 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."
35. The record reveals that pursuant to notification issued by the Government about change of name of Konaseema District as Dr.B.R. Ambedkar Konaseema District a call was given by JAC Konaseema District Sadhana Samithi for submission of representations. In pursuance of the same thousands of people gathered at Clock Tower Centre and proceeded to Collectorate Office. When Police tried to prevent them from entering the premises said mob pelted stones on the Police and caused injuries to them. Further the mob also damaged Collectorate Office as well as Ambedkar Building and also lit fire to buses.
36. As pointed out by learned counsel for the petitioner, to attract Sections 147 and 148 of IPC, there should be unlawful assembly. For better appreciation it is appropriate to extract Sections 141, 146, 147 and 148 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 14 (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.
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.
148. Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
37. Thus, there must be unlawful assembly as defined under Section 141 of IPC for attracting offences under Sections 147 and 148 of IPC. In the present case, going by complaint, prima facie, nothing is forthcoming from the record, that all the people in the mob had a common intention of committing an offence. 15
38. 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.]
39. In the present case, 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 of IPC. Specific overt acts were not attributed against the petitioners.
40. 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 are armed with weapons.
41. It is pertinent to mention here that names of the petitioners were mentioned in both the complaints. Witnesses have also 16 specifically stated about the presence of petitioners. Though there are no specific overt acts against petitioners, this court must keep in mind some of guidelines laid down by the Hon‟ble Apex Court, which are as under:
a. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
b. 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 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;
c. 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;
42. The contention of learned counsel for the petitioners is that petitioners herein are falsely implicated in these crimes due to political differences whereas according to the prosecution, petitioners are active participants in the rally and they executed illegal acts as per conspiracy of their leaders. Thus, keeping the guidelines issued by the Apex Court, since the petitioners‟ involvement in the above cases has been stated in the complaints 17 and statements of list of witnesses, whether the petitioners are entitled to pre-arrest bail?.
43. The learned Public Prosecutor specifically urged that petitioners‟ custody is important in this case, since according to the prosecution, they are active participants in hatching up the plan through whats app group and other social media platform, which resulted in occurrence of large-scale violence and other related executing the illegal acts as conspired. In the event petitioners are granted pre-arrest bail, petitioners will not co- operate with the investigating agency and in fact petitioners‟ presence for custodial interrogation is necessary. Prosecution needs petitioners‟ presence for free and fair investigation.
44. However, Moka Venkata Subba Rao, who was also accused in crime No.141 of 2022 of Amalapuram Town Police Station, wherein provisions of SC and ST POA Act were not attracted, was granted bail by order, dated 17.06.2022 passed in Crl.P.No.3959 of 2022.
45. Criminal Petition Nos.3981, 3982, 3983 and 3984 of 2022 filed by Arigela Venkata Rama Rao seeking pre-arrest bail in connection with crime Nos.138, 139, 140 and 141 of 2022 of Amalapuram Town Police Station were dismissed by common order, dated 04.07.2022.
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46. Keeping in view the principle of parity, as Moka Venkata Subba Rao i.e. petitioner No.2 in Crl.P.No.4169 of 2022 was granted pre-arrest bail in another crime, which arose out of same incident, this Court is inclined to grant pre-arrest bail to him and this Court is not inclined to grant bail insofar as Arigela Venkata Rama Rao i.e. petitioner No.1 in Crl.P.No.4169 is concerned.
47. Accordingly, these criminal petitions are allowed in part. Moka Venkata Subba Rao, who is arrayed as A33 and A16 in Crime Nos.126 and 127 of 2022 of Amalapuram Taluka Police Station, East Godavari District shall be released on bail in the event of his arrest in connection with said crimes on condition of executing self bond for Rs.20,000/- (Rupees Twenty Thousand only) with two sureties for a like sum each, in each crime to the satisfaction of the Station House Officer, Amalapuram Taluka Police Station, East Godavari District. He shall appear before the Station House Officer, Amalapuram Taluka Police Station, East Godavari District once in a week i.e. on every Saturday between 9:00 am to 6:00 pm for a period of eight weeks or till the date of filing of charge sheet, whichever is earlier. He shall cooperate with the investigation.
Moka Venkata Subba Rao shall cooperate with the police in investigation of the above crimes.
Moka Venkata Subba Rao shall not leave the limits of police station without intimating to the police till filing of charge sheet. 19
Moka Venkata Subba Rao shall neither influence the witnesses nor tamper the evidence.
48. These criminal petitions are dismissed against Arigela Venkata Rama Rao, who is arrayed A5 and A42 in Crime Nos.126 and 127 of 2022 of Amalapuram Taluka Police Station, East Godavari District.
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 findings in this order be construed as expression of opinion only for the limited purpose of considering bail in the above crime and shall not have any bearing in any other proceedings.
________________________________ JUSTICE SUBBA REDDY SATTI Date : 12.07.2022 IKN 20 HON'BLE SRI JUSTICE SUBBA REDDY SATTI CRIMINAL PETITION NOs. 4169 and 4526 OF 2022 Date : 12.07.2022 IKN 21 Bimal Gurung v. Union of India and Others4 wherein the Hon‟ble Supreme Court dealt with regard to peaceful protest, violent protests, bundhs affecting or threatening rights of others, 4 2018 (15) SCC 480