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2000 DIGILAW 367 (AP)

Setrucharla Chandrasekhara Raju v. State Of A. P.

2000-06-07

T.CH.SURYA RAO

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T. SURYA RAO, J. ( 1 ) THIS Criminal Revision case is directed against the Judgment dated 9-3-1999 passed by the learned Additional Sessions Judge, vizianagaram, confirming the conviction and sentence passed against all the petitioners by the trial Court by its Judgment dated 3-12-1998 in C. C. No. 141 of 1994 on the file of the Additional judicial Magistrate of first Class, Parvatipuram. Each of the accused was convicted for the offences under Sections 341,353 and 225 Part-1 of the indian Penal Code and sentenced to suffer six months rigorous imprisonment for the offence under Section 353 of the Indian Penal code and six months rigorous imprisonment for the offence under section 225 Part-1 of the Indian Penal Code and also sentenced to pay a fine of rs. 500/- in addition to the sentence of imprisonment for the said offences and further sentenced to pay a fine of Rs. 500/- for the offence under Section 341 of the indian Penal Code with the default sentence to suffer simple imprisonment for one week, while directing the substantial sentences to run concurrently inflicted against each of the accused. ( 2 ) IN view of the questions of law raised by Sri C. Padmanabha Reddy, learned senior Counsel for the petitioners it is expedient to give the factual matrix germane for better appreciation of the points involved, thus: p. W. I was the Head Constable attached to Kurupam Police Station at the relevant point of time and P. Ws. 2 and 3 were the police Constables working in the same police Station along with P. W. 1 It is said that the offence took place on 3-11-1993 at 10 p. m. at Chinamerangi village. On that day, according to the prosecution, P. Ws. 1 to 3 went to the said village for the purpose of apprehending P. W. 5 in this case who was alleged to have been concerned in Crime no. 60 of 1993 registered against him under section 429 of the Indian Penal code. After arresting P. W. 5 at his house while they were coming back on their way to the Police station, at the center in the village, it was further said that A-2 stopped them and informed them that P. W. 5 was not accused and alleged to have threatened them also. After arresting P. W. 5 at his house while they were coming back on their way to the Police station, at the center in the village, it was further said that A-2 stopped them and informed them that P. W. 5 was not accused and alleged to have threatened them also. When A-2 started shouting, number of people gathered there and at that time A-1 was going on a Jeep on that way. A-1 got down the jeep and was making enquiries about the incident with P. W. 1. P. W. 1 alleged to have told A-1, upon which it is said that a-1 informed P. W. I that as it was night time they could come on the next day and arrest P. W. 5. P. W. 1 stated to have replied that, as P. W. 5 was wanted in a cognizable offence he was arrested and being taken. Thereupon, A-1 said to have exhorted that p. W. I should be taken to task and pushed p. W. I by holding flap of his shirt and in sequel thereto the button of the shirt came out. It is the further case of the prosecution that A-1 asked A-4 Village Administrative officer who came there as to whether he was informed about the arrest of P. W. 5 by P. W. 1 thereupon, all the accused alleged to have taken away P. W. 5 from the lawful custody of p. W. I. At that time, it was further stated that the brother of A-1 by name Vijayarama Raju, member of Parliament came there, subsided the matter and asked them to go away. On a report in Ex. P-1 lodged by P. W. 1, on their return to the Police Station, a crime was registered against the accused and investigated into. After completing the investigation, a charge-sheet was laid against all the accused. ( 3 ) AT the time of the trial, 11 witnesses were examined on the side of the prosecution, out of them P. Ws. 4 to 11 have shown their volte face and had not supported the case of the prosecution. There remains the testimony of P. Ws. 1 to 3. On an appreciation of the evidence of P. Ws. ( 3 ) AT the time of the trial, 11 witnesses were examined on the side of the prosecution, out of them P. Ws. 4 to 11 have shown their volte face and had not supported the case of the prosecution. There remains the testimony of P. Ws. 1 to 3. On an appreciation of the evidence of P. Ws. 1 to 3, the trial Court came to the conclusion that "the offences alleged against the accused had been proved and accordingly they were convicted and sentenced as aforesaid. On the appeal filed by the convicted accused having been aggrieved by the conviction and sentence passed against them, the learned Additional Sessions Judge, vizianagaram, discussed elaborately about the various discrepancies and infirmities pointed out at the time of hearing and ultimately had come to the conclusion that they would weigh with the Court and the evidence of P. Ws. 1 to 3 was credible and could be safely relied upon without any hesitation. Having observed so, the learned additional Sessions Judge confirmed the conviction and sentence passed against all the accused. As against the said Judgment as aforesaid, the petitioners filed the present revision assailing both the conviction and sentences passed against them. ( 4 ) SRI C. Padmanabha Reddy, learned senior Counsel for the petitioners has raised two questions of law during the course of his arguments while challenging the conviction and sentence passed against the revision petitioners namely, (1) that there has been no proof on record to show that P. W. 5 was involved in a crime registered against him in crime No. 60 of 1993 registered under section 429 of the Indian Penal Code and therefore in the absence of any such proof of his involvement in the crime, the very basis or the foundation for the arrest of the said witness goes and P. Ws. 1 to 3 could not have been validly arrested and (2) that the offence under Section 429 of the Indian Penal Code being cognizable and bailable, P. W. I was obliged under law to inform the arrestee then and there the ground for which he was arrested and he should be further informed that the arrestee was entitled to be released on bail and that he might arrange for sureties on his behalf and the requirement under section 50 of the Criminal Procedure Code being mandatory, P. W. I without informing the arrestee namely, P. W. 5 and on the other hand trying to take him from the village to the Police Station, albeit P. W. 5 was involved in the alleged offence under Section 429 of the Indian Penal Code which is bailable is against the mandatory provision of law and therefore even assuming for a moment that the alleged offence did in fact take place, the accused are entitled to resist the arrest of p. W. 5. The learned Counsel has further contended that on a perusal of the evidence of P. Ws. 2 and 3 the two Police Constables, it is obvious, that they have not supported the version of P. W. I and it is not a case that their testimony being any way be set with discrepancies which are minor in the view of the learned Additional Sessions Judge and therefore the evidence of P. W. I cannot implicitly be believed when the testimony of he other two witnesses is not supporting. ( 5 ) HEARD the learned Public Prosecutor appearing for the State. In view of the two questions of law raised during the course of arguments there is nothing much to appreciate the oral evidence on the point and as in my considered view the Criminal revision Case can be disposed of on the two points raised by the learned Counsel for the petitioners. ( 6 ) THE sheet anchor of the case of the prosecution was that P. W. 5 was involved in a crime registered against him under section 429 of the Indian Penal Code in crime No, 60 of 1993 of Kurupam Police station and therefore in that connection, when P. W. 5 was sought to be arrested and was being taken to the Police Station, all the accused perpetrated the offences alleged in this case. It is, therefore, for the prosecution to prove at the first instance that P. W. 5 was involved in Crime No. 60 of 1993 under section 429 of the Indian Penal Code. It is no doubt true that P. W. I in his testimony deposed on oath about the said crime in his chief examination and that he has investigated that crime. A suggestion has been put categorically to the witness in the cross-examination denying the involvement of P. W. 5 by name Kota Appanna in the alleged crime. The obligation on the part of the prosecution becomes much more onerous in the wake of the denial by putting specific suggestion to that effect during the course of the cross-examination of the witness, apart from the obligation on the part of the prosecution to establish each and every fact necessary to bring home the guilt of the accused. Except the ipse dixit of P. W. 1, absolutely there is no evidence coming forth in proof of the said allegation of the involvement of P. W. 5 in Crime No. 60 of 1993. Even P. Ws. 2 and 3 have expressed their ignorance about the pendency of any such case against any witness. Therefore, in the absence of any such proof, the very basis for the arrest of P. W. 5 goes and cannot be upheld. Since there is no evidence to show that P. W. 5 has been involved in a cognizable offence and as evidently no warrant has been obtained by P. W. 1. for the arrest of P. W. 5, the very allegation that P. Ws. 1 to 3 have sought to arrest P. W. 5 in connection with that crime cannot be countenanced by any Court of law. ( 7 ) EVEN assuming for a moment that as alleged P. W. 5 has been arrested by P. W. 1. P. W. 1. hasbeen obliged under law not only to discharge his legal obligation of informing the arrestee about the ground of arrest, any the other information that he is entitled to bail and he can arrange for sureties for himself. It is expedient here to refer section 50 of the Criminal Procedure Code, which reads as under: 1. P. W. 1. hasbeen obliged under law not only to discharge his legal obligation of informing the arrestee about the ground of arrest, any the other information that he is entitled to bail and he can arrange for sureties for himself. It is expedient here to refer section 50 of the Criminal Procedure Code, which reads as under: 1. Every Police Officer, or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. 2. Where a Police Officer arrestes without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. ( 8 ) APART from this clear legal position and the mandatory requirement attached there under compelling P. W. 1. to discharge the obligation, time and again the Apex Court has also directed the investigating agency giving certain guidelines to be followed whenever there has been an occasion to arrest any person who is said to have involved in a crime. The guidelines given by the Apex Court in this connection in d. K. Basil vs. State of West Bengal are also clear enough that P. W. I is duty bound to inform the arrestee about the grounds of arrest and to inform further that he is entitled to bail and can arrange for sureties on his behalf. It may be mentioned here that the offence under Section 429 of the Indian Penal code is cognizable and bailable as can be seen from the First Schedule appended to the code of Criminal Procedure. When once it is a bailable offence, in view of the mandatory provisions of Section 436 of the Criminal procedure Code the accused shall be released on bail, provided he is prepared to furnish bonds with sureties. Sub-section (2) of Section 50 of the Criminal Procedure Code comes into play as P. W. 1. is obliged under law to inform P. W. 5 about his statutory right to obtain the bail. There has been no whisper in the entire evidence of P. W. 1. that he did inform P. W. 5 about his right to be released on bail and that he could arrange for the sureties on his behalf. is obliged under law to inform P. W. 5 about his statutory right to obtain the bail. There has been no whisper in the entire evidence of P. W. 1. that he did inform P. W. 5 about his right to be released on bail and that he could arrange for the sureties on his behalf. It is an infraction of clear mandatory provisions of law. Beset with these two legal infirmities, the very basis for the arrest, even assuming for a moment that there has been such an arrest, is taken away. When there is no legal arrest and P. W. I is not legally authorized in the absence of any such warrant to arrest and when there has been clear infraction of mandatory provisions of sub-section (2) of section 50 of the Code, any person, who has been arrested is entitled to resist under law such an arrest. Not only the arrestee but also every other person where the liberty of an individual is at stake, can interfere and see that the man is not taken away by exercising the right of private defence. These two legal infirmities would go definitely, in my considered view, to the root of the case. ( 9 ) BOTH the Courts below having appreciated the oral evidence of P. Ws. 1 to 3 at length have failed to address themselves to these two important questions of law as they touch upon the merits of the case. ( 10 ) IN view of these two legal infirmities, it is not necessary to discuss about the consistency of the oral evidence of P. Ws. l to 3 and to what extent the testimony of those witnesses can be relied upon by the Court. ( 11 ) FOR the foregoing reasons, the criminal Revision Case is allowed. The conviction and sentence passed against the revision petitioners by the trial Court and confirmed by the appellate Court are hereby set aside. The bail bonds of the petitioners shall stand cancelled. The fine amount if any paid by the petitioners shall be refunded to them.