Criminal Petition No. 16422 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.4, 45, 52, 56, 57, 58, 60, 61, 62, 63, 67 and 71 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. Perusal of record would reveal that on the complaint lodged by Mr. N. Srinivas Reddy, Deputy Superintendent of Police, 2 KL,J Crl.P. No.16422 of 2024 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 the course of investigation, the Investigating Officer included the names of petitioners in the said crime as accused Nos.4, 45, 52, 56, 57, 58, 60, 61, 62, 63, 67 and 71.

5. 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); 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 3 KL,J Crl.P. No.16422 of 2024 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, 6, 7, 10 and 11 are agriculturists, while petitioner Nos.3 and 12 are labourers, and they and are eking out their livelihood basing on agriculture and doing daily labour works respectively. Petitioner No.4 is a student and petitioner Nos.8 and 9 are woman and they are house wives; and viii) The petitioners will abide by any condition imposed by this Court.

6. Whereas, the Sub-Divisional Police Officer, Tandur, filed counter stating that on consideration of the statement of LW.1 and on the instigation, provocation and support of accused No.1, accused Nos.2 to 71 formed into an unlawful assembly and deliberately attacked on the District Collector and other Revenue Officials on

11.11.2024 with deadly weapons. In this crime, LWs.1 to 28 were examined. LWs.1 to 7 and 17 specifically stated about 4 KL,J Crl.P. No.16422 of 2024 involvement of the petitioners in the subject crime. There are serious allegations against the petitioners and, therefore, they are not entitled for anticipatory bail.

7. 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. Two more crimes were registered against petitioner Nos.1 and 2 - accused Nos.4 and 45, vide Crime Nos.154 and 155 of 2024 of the very same police station. Crime No.154 of 2024 was registered against petitioner Nos.9 and 11 - accused Nos.62 and 67, while Crime No.155 of 2024 was registered against petitioner Nos.7 to 9 - accused Nos.60, 61 and 63. Thus, there are serious allegations 5 KL,J Crl.P. No.16422 of 2024 against all the accused herein. With the said contentions learned Public Prosecutor opposed the present application.

8. 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 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, 6 KL,J Crl.P. No.16422 of 2024 Accused No.2 attacked the officers with stones and sticks. Accused No.1 gave him assurance that he will take care of legal consequences.

9. Thus, perusal of statements of LWs.1 to 7 and LW.17 would reveal that LW.1 mentions the name of accused No.4, LWs.2 to 6 mentions the names of accused Nos.4 and 45, LW.7 and LW.17 mention the names of the petitioners herein. Except stating the names of the petitioners, LWs.1 to 7 and 17 have not stated specific role played by the petitioners in the commission of alleged offences. There are no specific overt acts against them. The allegations are

general in nature. Prima facie, the allegations lack the ingredients of the aforesaid offences.

10. Section - 191 of the 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. 7 KL,J Crl.P. No.16422 of 2024

11. 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.

12. Section - 121 of the BNS deals with voluntarily causing hurt or grievous hurt to deter public servant from discharging his duty 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.

13. 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.

14. 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.

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

16. Section - 3 of the PDPP Act deals with Mischief causing damage to public property. The same is relevant and extracted below: 8 KL,J Crl.P. No.16422 of 2024 “(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 (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.”

17. 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 9 KL,J Crl.P. No.16422 of 2024 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 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.

18. 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 the BNSS.

19. 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.

20. In Siddharam Satlingappa Mhetre v. State of Maharashtra1, the Hon’ble Supreme Court laid down certain

1. (2011) 1 SCC 694 10 KL,J Crl.P. No.16422 of 2024 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 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; 11 KL,J Crl.P. No.16422 of 2024 (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 the matter of grant of bail and in the event of there being some doubt as to the genuineness of the 12 KL,J Crl.P. No.16422 of 2024 prosecution, in the normal course of events, the accused is entitled to an order of bail.”

21. The Apex Court further held that arrest should be the last option and it should be restricted to those exceptional cases where 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.

22. 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. 13 KL,J Crl.P. No.16422 of 2024

23. The Apex Court further held irrational and indiscriminate arrests are gross violation of human rights.

24. 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.

25. 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