Andhra Pradesh High Court - Amravati
Unknown vs Code Of Criminal Procedure on 15 November, 2022
THE HONOURABLE SRI JUSTICE K. SREENIVASA
REDDY
CRIMINAL PETITION NO.4839 OF 2022
ORDER :-
This Criminal Petition, under Section 439 (2) of the Code of Criminal Procedure, 1973 (for short, 'CrPC'), is filed seeking to cancel the anticipatory bail granted to the respondent vide Order dated 16.06.2022 passed in Crl.M.P.No.673 of 2022 on the file of the IV Additional Metropolitan Sessions Judge, Vijayawada, in crime No.352 of 2022 of Penamaluru police station.
2. The respondent is A.1 is crime No.352 of 2021 of Penamaluru police station registered for the offences punishable under Sections 353, 332, 323, 506, 392, 307 read with 34 of the Indian Penal Code, 1860 (for short, 'IPC'). Vide the impugned Order dated 16.06.2022, the learned Sessions Judge allowed the petition in Crl.M.P.No.673 of 2022 filed by the respondent/A.1 for 2 grant of anticipatory bail, directing to enlarge the respondent on bail in the event of his arrest in the abovesaid crime, on his executing a bond for Rs.25,000/- with two sureties for the like sum each to the satisfaction of the Station House Officer concerned and also directed to follow the conditions contemplated under Section 437 (2) CrPC. Challenging the said order, State preferred the present Criminal Petition.
3. Heard the learned Additional Public Prosecutor for the petitioner-State and the learned counsel for respondent.
4. Learned Additional Public Prosecutor contended that the officials went to fair price shop of A.3 in order to perform their official functions viz. for inspection, where the henchmen of respondent/A.1 manhandled the officials at the instigation of respondent/A.1 and caused injuries to the informant. He further contended that if 3 anticipatory bail is granted in these types of cases, the officials would not be in a position to perform their duties diligently without fear. He further contended that it is the respondent/A.1 who had taken away the mediators report drafted by the officials at the scene of offence, and A.2, who happens to be driver of car of respondent/A.1, manhandled the officials who were discharging their official duties at the instigation of respondent/A.1. He further strenuously contended that the respondent/A.1 has involved in as many as 32 cases, and the learned Sessions Judge, without going into these aspects, had mechanically granted anticipatory bail to respondent/A.1, and hence, he prays to cancel the same.
5. On the other hand, learned counsel for respondent/A.1 contended that the allegations are directed as against A.2 to A.12 and there is absolutely no accusation as against the respondent/A.1. He 4 contended that the only allegation as against the respondent/A.1 is that he was standing at a distance and his followers allegedly pounced upon the officials and fisted on the face and beat him on the back with hands and legs; they caught hold of neck of the informant and tried to squeeze and they took away the statement and mediators report from the informant and beat the Village Revenue Officer, and the informant escaped from the scene of offence and went to Ayush Hospital and underwent treatment as he sustained swelling injury to his right hand. He further submitted that the learned Sessions Judge, by taking into consideration the well settled principles, rightly granted anticipatory bail to the respondent/A.1 and there are absolutely no grounds to interfere with the impugned order.
6. Perused the record.
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7. The allegations, in brief, in the First Information Report are as follows.
On 17.05.2022 at about 7.00 PM, the informant Gummadi Vijay Kumar, Deputy Tahsildar (PDS), along with Village Revenue Officer Manga Raju, surprised fair price shop No.27 of A.3-Lukka Arun Babu at Penamalur to conduct inspection and found some irregularities during inspection. When he questioned A.3 about the same, A.3, instead of giving explanation, made phone call to respondent/A.1. Immediately, followers of respondent/A.1 viz.A.4 to A.12 and others, all of sudden, came to the shop. Respondent/A.1 also came to the shop by car, driven by A.2, at about 22.00 hours. Thereafter, A.4 to A.12, with a common object to attack the inspecting officials, pounced upon them and started manhandling and fisting and threatened them with dire consequences. Respondent/ A.1, who was present at the car, instigated A.2, A.4 to A.12 to kill the officials, 6 stating 'chempeyandi naa kodukui, mana joliki vasthada, veedini bratakaneeyakandi'. On such instigation, A.2 caught hold throat of the informant Vijaya Kumar and tried to kill him by underlying. Both the informant Vijaya Kumar and Village Revenue Officer Manga Raju sustained bleeding injuries. Both of them ran away from the scene. The informant Vijaya Kumar got admitted himself in Ayush Hospital for treatment. Manga Raju escaped and stayed somewhere for the night, and on the next day i.e. on 18.05.2022, he came to police station. Basing on the statement of the information, police registered the aforesaid crime for the offences punishable under Sections 353, 332, 323, 506, 392, 307 read with 34. Thereafter, police altered the Section of Law to Sections 143, 353, 332, 323, 506, 392, 307 read with 149 IPC.
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8. Learned Additional Public Prosecutor relied on a decision in Vipan Kumar Dhir v. State of Punjab and another1, wherein it is held thus: (paragraphs 11 and
12).
"11. In addition to the caveat illustrated in the cited decision(s), bail can also be revoked where the court has considered irrelevant factors or has ignored relevant material available on record which renders the order granting bail legally untenable. The gravity of the offence, conduct of the accused and societal impact of an undue indulgence by Court when the investigation is at the threshold, are also amongst a few situations, where a Superior Court can interfere in an order of bail to prevent the miscarriage of justice and to bolster the administration of criminal justice system. This Court has repeatedly viewed that while granting bail, especially anticipatory bail which is per se extraordinary in nature, the possibility of the accused to influence prosecution witnesses, threatening the family members of the deceased, fleeing from justice or creating other impediments in the fair investigation, ought not to be overlooked.
12. Broadly speaking, each case has its own unique factual scenario which holds the key for adjudication of bail matters including cancellation thereof. The offence alleged in the instant case is heinous and protrudes our medieval social structure 1 2021 SCC OnLine SC 854 8 which still wails for reforms despite multiple efforts made by Legislation and Judiciary."
He also relied on a decision in Mahipal v. Rajesh Kumar alias Polia and another2, wherein it is held thus:
(paragraphs 16 and 17).
"16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. In Neeru Yadav v. State ofU.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] , the accused was granted bail by the High Court [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] . In an appeal against the order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] of the High Court, a two-Judge Bench of this Court surveyed the precedent on the principles that guide the grant of bail. Dipak Misra, J. (as the learned Chief Justice then was) held : (Neeru Yadav 2 (2020) 2 SCC 118 9 case [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] , SCC p. 513, para 12) "12. ... It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail have not been taken note of, or bail is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court."
17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non- application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment. The order [Rajesh Kumar v. State of Rajasthan, 2019 SCC OnLine Raj 5197] of the High Court in the present case, insofar 10 as it is relevant reads : (Rajesh Kumar case [Rajesh Kumar v. State of Rajasthan, 2019 SCC OnLine Raj 5197] , SCC OnLine Raj paras 2-4) "2. Counsel for the petitioner submits that the petitioner has been falsely implicated in this matter. Counsel further submits that, the deceased was driving his motorcycle, which got slipped on a sharp turn, due to which he received injuries on various parts of body including ante-mortem head injuries on account of which he died. Counsel further submits that the challan has already been presented in the court and conclusion of trial may take long time.
3. The learned Public Prosecutor and counsel for the complainant have opposed the bail application.
4. Considering the contentions put forth by the counsel for the petitioner and taking into account the facts and circumstances of the case and without expressing opinion on the merits of the case, this Court deems it just and proper to enlarge the petitioner on bail."
Relying upon the aforesaid judgments, the learned Additional Public Prosecutor contended that bail can also be revoked when the Court considered irrelevant facts or ignored relevant material available on record, which renders the order, granting bail, legally untenable. 11
9. On the other hand, learned counsel for respondent/A.1 contends that the grounds urged for cancellation of bail are not sufficient to cancel the bail since they are against the well settled principles of law.
10. Grant of bail and cancellation of bail are antithetical and stand on two different parameters. The power of cancellation of bail should be exercised with care and circumspection. Bail shall not be cancelled in arbitrary or capricious manner. The power has to be exercised judicially by following the well settled principles of law. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the 12 concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record, of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
11. On this aspect, it is pertinent to refer to a decision in Subhendu Mishra v. Subrat Kumar Mishra and another3, wherein it is held thus: (para 4) "In Dolat Ram v. State of Haryana (1995) 1 SCC 349 while drawing a distinction between rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, it was opined by this Court :
". . . . . . . . . Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted.
3 2000 Supreme Court Cases (Cri.) 1508 13 Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are :
interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."
12. Section 439 CrPC deals with special powers of High Court or Court of Sessions regarding bail. Section 439 (2) CrPC stipulates that a High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
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13. A perusal of the accusations that have been made would go to show that all the accusations are directed as against A.2, A.5 to A.12. They were arrested on 18.05.2022. Wound certificate of the injured shows that the injuries received by him are simple in nature. At a later point of time, a certificate has been produced by the defacto complainant issued by the L.V.Prasad Eye Hospital showing that he received grievous injury. Going by the accusations, the respondent/A.1 is said to have not participated in the commission of the offence and the allegation attributed against him is that he instigated other accused standing near the scene of offence. Admittedly, respondent/A.1 was MLA of Penamaluru Constituency from 2014 to 2019 and at present, he is in-charge of the said Constituency for Telugu Desam Party.
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14. The parameters would differ for granting bail and for cancellation of bail. On a perusal of the material on record goes to show that the subject crime was registered on 18.05.2022 i.e. nearly about six months back. Originally, the offences that were alleged against the accused are punishable with imprisonment of less than seven years, except Section 307 IPC. In respect of A.4, he was granted anticipatory bail by the learned Sessions Judge. The same remained unchallenged. A.3 surrendered before the learned Magistrate and subsequently he was released on bail. When A.2, A.5 to A.12 were produced before the learned VI Additional Metropolitan Magistrate, Vijayawada, the learned Magistrate refused to remand them holding that prima facie case in respect of the offence punishable under Section 307 IPC is not made out and ordered to release them on bail on executing a personal bond for Rs.10,000/- with two sureties for the like sum each. 16
15. A perusal of the material submitted by the learned Additional Public Prosecutor goes to show that as many as 32 cases were shown to have been registered against the respondent/A.1. It is clear from the material on record that except 5 cases, the other cases that were registered against the respondent/A.1 were closed as mistake of fact, false and some of the cases ended in acquittal. Since the respondent/A.1 has not violated any of the conditions that have been imposed by the Court below, his case would not in any way come within the purview of Section 439 (2) CrPC.
16. However, a perusal of the impugned order would go to show that the learned Sessions Judge should have assigned reasons as to how the respondent/A.1 is entitled for grant of anticipatory bail. The order passed by the learned Sessions Judge is without assigning any reasons for grant of bail. The line between a reasoned 17 order and temerity is sometimes axiomatic after the consequences become clear. In the absence of a reasoned order, the present petition came to be filed by the State for cancellation of bail. It is essential that the Courts to pass an order assigning reasons as to how the accused are entitled to bail/anticipatory bail.
17. However, for the foregoing reasons, this Court does not find any valid reasons to cancel the bail, as prayed for, by the petitioner-State. The Criminal Petition is devoid of merit.
18. Accordingly, the Criminal Petition is dismissed.
Miscellaneous Petitions, if any, pending shall stand closed.
___________________________________ JUSTICE K. SREENIVASA REDDY 15.11.2022 DRK 18 THE HONOURABLE SRI JUSTICE K. SREENIVASA REDDY CRIMINAL PETITION NO.4839 OF 2022 15.11.2022 DRK