Criminal Petition No. 15810 of 2024 · High Court · 2025

Order

Heard Mr. M.A.K. Mukheed, learned Counsel for petitioners and Mr. Syed Yasar Mamoon, learned Additional Public Prosecutor appearing on behalf of respondent - State.

2. This Criminal Petition is filed by the petitioners under Section - 482 of the Bharatiya Nagarik Suraksha Sanhita (for Short ‘BNSS’) seeking anticipatory bail in the event of their arrest in connection with FIR No.153 of 2024 of P.S. Bomraspet Police Station, Vikarabad District.

3. The petitioners herein are arraigned as Accused Nos.10, 12, 32, 34, 35 and 44 in the aforesaid Crime. The offences alleged against them are under Sections - 191(2), 191(3), 132, 109, 121 (1), 126 (2) and 324 (4) read with 190 of the Bharatiya Nyaya Sanhita (for Short ‘BNS’) and under Section 3 of the Prevention of Damage to Public Property, 1984 (for Short ‘PDPP Act’).

4. During pendency of the present petition, petitioner No.3 was arrested by the Investigating Officer. Therefore, this application in 2 KL,J Crl.P. No.15810 of 2024 respect of petitioner No.3 - accused No.32 has become infructuous and, therefore, the same is dismissed as infructuous against petitioner No.3 - accused No.32.

5. Perusal of record would reveal that on the lodged by Mr. N. Srinivas Reddy, Deputy Superintendent of Police, Vikarabad, a case in Crime No.153 of 2024 was registered by Bomraspet Police Station against the accused. In the said complaint, the names of petitioners herein are not mentioned. However, during course of investigation, the Investigating Officer included the names of petitioners in the said crime as accused Nos.10, 12, 34, 35 and 44.

6. Mr. M.A.K. Mukheed, learned counsel for the petitioners, would submit as follows: i) There is no specific allegation against the petitioners herein, nor evidence to the effect that they were present at the meeting; ii) Due to political rivalry, the police registered the present crime against the petitioners; iii) There was no intention on the part of the petitioners to kill the District Collector (LW-21). 3 KL,J Crl.P. No.15810 of 2024 iv) The Police included 71 accused, three villagers i.e., Lagacherla, Rotibanda Thanda and Pulicherlakunta Thanda and all are agriculturists. v) Police have arrested 34 accused and tortured them. They were subjected to 3rd degree methods. Due to the said harassment of police, no male person is sleeping in the three villages. vi) Thus, there is threat of arrest to the petitioners herein and they are also apprehending that police would torture them and subject them to 3rd degree methods. vii) Petitioner Nos.1, 2, 5 and 6 are agriculturists and are eking out livelihood basing on agriculture. Petitioner No.4 is a woman and she is house wife. viii) The petitioners will abide by any condition imposed by this Court.

7. Whereas, the Sub-Divisional Police Officer, Tandur, filed counter stating that on consideration of the statement of LW.1 with regard to the involvement of accused Nos.10 and 12, LWs.2 and 3 officials, Officials and LWs.4 to 7 and 17, the Villagers of Lagacherla, the Investigating Officer included the names of the petitioners herein. 4 KL,J Crl.P. No.15810 of 2024 The aforesaid witnesses specifically stated about the involvement of the petitioners in the subject crime. There are serious allegations against the petitioners and, therefore, they are not entitled for anticipatory bail.

8. Learned Additional Public Prosecutor, on instructions, would submit that that petitioners and other accused formed into an unlawful assembly with a common intention of killing the officials who came for public hearing including LW-22. Accused No.1 rendered all types of assistance to the accused including financial, moral support etc. They came with stones, sticks and chilli powder with an intention to kill the officials including LW-21. It was an unlawful assembly and there was intention to kill the aforesaid officials. With the said intention only at the instance of A-1, A-2 informed the District Collector and other officials to come to the Village itself. Thus, there are serious allegations against all the accused herein. With the said contentions learned Public Prosecutor opposed the present application.

9. Perusal of record would reveal that LW-4, LW-5, LW-6, LW-7, LW-17 are the residents of Lagacherla village and in one 5 KL,J Crl.P. No.15810 of 2024 voice, stated that petitioners, 40 others and others tried to attack on the officials with stones and sticks without even opening a dialogue with the officials, they went away from the said place. District Collector, LW-21 Additional Collector, in-charge Collector, MRO, RDO, DSP, Vikarabad were attacked with stones and sticks and their vehicles were also damaged. Then apprehending that police are coming, Accused No.2 requested them to go away. Therefore, they went away. Evening they have enquired with Accused No.2, who informed them that if pharma company is established at the said place, ‘Chitti Naidu’ will succeed in which event he will not stop. Therefore, under any circumstances they should not support to establish pharma city at the said place. Accused No.1 also informed him that he will spend the amount also. Apart from Accused No.1, KTR support is also there. They have informed Accused No.2 to send away all the officials who come for land acquisition and if necessary kill them. Therefore, Accused No.2 attacked the officers with stones and sticks. Accused No.1 gave him assurance that he will take care of legal consequences.

10. Thus, perusal of statements of LWs.1 to 7 and LW.17 would reveal that except stating the names of the petitioners, they have not stated specific role played by the petitioner in the 6 KL,J Crl.P. No.15810 of 2024 commission of alleged offences. There are not specific overt acts

against them. The allegations are general in nature. Prima facie, the allegations lack the ingredients of the aforesaid offences.

11. Section 191 of BNS deals with rioting and the same is extracted below: 1) 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. (2) 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. (3) 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 five years, or with fine, or with both.

12. Section 132 of the BNS deals with assaults or uses criminal force to deter any person from discharge of his official duty and the punishment prescribed is imprisonment of either description for a term which may extend to two years, or with fine, or with both.

13. Section 121 of the BNS deals with voluntarily causing hurt or grievous hurt to deter public servant from discharging his duty 7 KL,J Crl.P. No.15810 of 2024 and the punishment for the same is shall not be less than one year but which may extend to 10 years and also liable to fine.

14. Section 126 of the BNS deals with wrongful restraint and punishment for the same is one month or with fine which may extend to Rs.5000/- or with both.

15. Section 324 of the BNS deals with Mischief and the punishment for the same is imprisonment for six months or with fine or with both.

16. Section 190 of the BNS says that every member of unlawful assembly guilty of offence committed in prosecution of common object.

17. Section 3 of the PDPP Act deals with Mischief causing damage to public property. The same is relevant and extracted below: “(1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine. (2) Whoever commits mischief by doing any act in respect of any public property being 8 KL,J Crl.P. No.15810 of 2024 (a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy; (b) any oil installations; (c) any sewage works; (d) any mine or factory; (e) any means of public transportation or of tele- communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine Provided that the Court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months.”

18. Section 109 of the BNS deals with Attempt to Murder. The same is relevant and it is extracted below:

1. 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 imprisonment for life, or to such punishment as is hereinbefore mentioned.

2. When any person offending under sub-section (1) is under sentence of imprisonment for life, he may, if hurt is 9 KL,J Crl.P. No.15810 of 2024 caused, be punished with death or with imprisonment for life, which shall mean the remainder of that person’s natural life. The punishment for the said offence is ten years of imprisonment and fine.

19. Thus, the punishment for the aforesaid offences except the offence under Section 109 of the BNS is below 7 years. Therefore, petitioners are entitled for benefit under Section 35 (3) of BNSS.

20. To constitute an offence under Section 109 of the BNS, there should be intention to kill or knowledge that such act would cause death of the person.

21. In Siddharam Satlingappa Mhetre v. State of Maharashtra1, the Hon’ble Supreme Court laid down certain parameters that can be demonstrated while dealing with anticipatory bail and it is relevant and same is extracted below: “121. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide

1. (2011) 1 SCC 694 10 KL,J Crl.P. No.15810 of 2024 rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.

122. The following factors and parameters can be taken into consideration while dealing with the anticipatory 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 accused 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. 11 KL,J Crl.P. No.15810 of 2024 (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 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.”

22. The Apex Court further held that arrest should be the last option and it should be restricted to those exceptional cases where 12 KL,J Crl.P. No.15810 of 2024 arresting the accused is imperative in the facts and circumstances of that case. The Court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.

23. The Apex Court further held that the aforesaid factors are only illustrative. It is difficult to clearly visualize all situation and circumstances in which a person may pray for anticipatory bail. If a wide discretion is exercised by the concerned judge after consideration of entire material on record, then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior Courts. In consonance with the legislative intention, the discretion would be properly exercised.

24. The Apex Court further held irrational and indiscriminate arrests are gross violation of human rights. 13 KL,J Crl.P. No.15810 of 2024

25. In Joginder Kumar v. State of U.P.2, a Three-Judge Bench of the Apex Court referred to the third Report of the National Police Commission in which it is mentioned that the quality of arrests by the Police in India mentioned “power of arrest was one of the chief sources of corruption in the police. The report suggested that by and large nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the prison department”. Personal liberty is a precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

26. Relying on the said judgment, the Apex Court in Sushila Aggarwal v. State (NCT of Delhi)3 held that despite several Law Commission Reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon. Parliament has not thought it appropriate to curtail the power or discretion of the Courts, in granting pre-arrest or anticipatory bail, especially regarding the duration, or till charge sheet is filed, or