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2012 DIGILAW 793 (AP)

Chunduri Srinivasa Rao v. Akasapu Nageswara Rao

2012-08-30

R.KANTHA RAO

body2012
ORDER Criminal Petition No.943I of 2009 is filed by A1 to A4, whereas Criminal Petition No.9227 of 2009 is filed by the de facto complainant in PRC No.37 of 2009 on the file of the Court of Additional Judicial Magistrate of First Class, Tadepalligudem, West Godavari District. 2. Heard Sri Purnachandra Reddy representing Smt. D. Sangeetha Reddy, the learned Counsel appearing for the petitioners A1 to A4 in Crl. P No. 9431 of 2009, Sri D. Ramalillgaswamy, the learned Counsel appearing for the petitioner-de facto complainant in Criminal Petition No.9227 of 2009 and the learned Additional Public Prosecutor representing the State. 3. The short facts leading to the filing of these two criminal petitions are that the de facto complainant lodged a report against the accused with the Police Pentapadu alleging that on 18.3.2008 at about 11:00 a.m., A1 to A4 beat Lws. 1 and 2 with knives, caused bleeding injuries, restrained them entering into the fields and rice mill, damaged the furniture in the rice mill and the car of LW2 and also that they abused LW1 in the name of his caste. On the strength of the said report, the Station House Officer, Pentapadu Police Station registered a case in Crime No. 40 of 2008. LW1 however alleging that the police have not been properly investigating into the offence filed a private complaint in the Court of Additional Judicial Magistrate of First Class, Tadepalligudem against the petitioners-A1 to A4. The said complaint was forwarded by the learned Magistrate to the police under Section 156(3) of Cr. PC for investigation and filing final report. 4. While the matter was under investigation, the petitioners-accused filed Criminal Petition No.2061 of 2009 before this Court to quash the investigation pending with the police. In the said criminal petition, this Court passed an order granting stay of arrest of the accused but directed the investigation to go on. However, subsequently the police after investigating into the offence filed charge-sheet against the accused in the Court of Additional Judicial Magistrate of First Class, Tadepalligudem, West Godavari District, under Sections 324, 506(2), 341, 342, 427 IPC and Section 3(1)(x) of SCs and STs (POA) Act, 1989 read with 34 IPC. Subsequent to the filing of the charge-sheet, Criminal Petition No.2061 of 2009 was dismissed as it became infructuous. 5. After filing of the charge-sheet, the learned Magistrate issued summons to the accused. Subsequent to the filing of the charge-sheet, Criminal Petition No.2061 of 2009 was dismissed as it became infructuous. 5. After filing of the charge-sheet, the learned Magistrate issued summons to the accused. The accused, who received the summons have been attending the Court regularly in PRC No.37 of 2009. While so, the Additional Public Prosecutor filed a petition before the learned Magistrate on 30.10.2009 under Section. 204 Cr. PC stating inter alia that the learned Magistrate ought to have issued non-bailable warrants against the accused instead of issuing summons. By allowing the application, the learned Magistrate issued non-bailable warrants against the accused and now the non-bailable warrants are pending execution. 6. In the backdrop of the aforesaid events, the accused filed Criminal Petition No.9431 of 2009 to cancel the non-bailable warrants and issue a direction to the Magistrate to accept the bail bonds of the accused and the sureties and commit the case to the Special Court for trial of cases under SCs and STs (POA) Act, 1989. Whereas the de facto complainant filed Criminal Petition No.9227 of 2009 to issue a direction to the learned Magistrate to take the accused into custody by executing the non-bailable warrants issued against them and remand them to judicial custody subject to the orders of bail, if any, obtained by the accused. 7. Thus, according to the accused, since the learned Additional Judicial Magistrate of First Class, Tadepalligudem, after filing of the charge-sheet exercised his jurisdiction to issue summons and in obedience thereof the accused have been attending the Court regularly, issuance of non-bailable warrants against them on the petition filed by the Additional Public Prosecutor is illegal. 8. On the other hand, it is the contention of the de facto complainant that since the accused were indicted for non-bailable offences under the Penal Code and also for the offences under SCs and STs (POA) Act, 1989 for which there is prohibition under Section 18 of the Act for granting anticipatory bail, the learned Magistrate soon after their appearance before him ought to have taken them into custody and remanded them to judicial custody subject to any bail granted by the Court of Sessions/Special Court for SCs and STs (POA) Act. 9. Under Section 204 Cr. P.C. the Magistrate after taking cognizance of the offence has discretion either to issue non-bailable warrant or summons. 9. Under Section 204 Cr. P.C. the Magistrate after taking cognizance of the offence has discretion either to issue non-bailable warrant or summons. In the instant case, the learned Magistrate having exercised his discretion issued summons to the accused and he has not chosen to issue non-bailable warrant. When once such discretion has been exercised by the Magistrate and the accused have been attending the Court in obedience to the summons issued to them, the learned Magistrate subsequently issuing non-bailable warrant on an application filed by the Additional Public Prosecutor is totally erroneous. There is no requirement in law that in each and every case triable by the Court of Session or by the Special Court under Prevention of Atrocities Act, 1989 the accused shall be arrested and released on bail. After filing of the charge-sheet irrespective of the offences alleged when the Magistrate issued summons and the accused attends the Court on receiving the said summons, issuing non-bailable warrant against them at a subsequent stage without there being any changed circumstances is illegal merely because the case is triable by the Court of Session/Special Court for SCs and STs (POA) Act, 1989. It is not obligatory on the part of the accused to obtain bail from the Sessions Court in the event of the case being committed to the Court of Session. I absolutely see no force in the contention that in view of the prohibition under Section 18 of the SCs and STs (POA) Act, 1989 for granting anticipatory bail, the Magistrate is duty bound to take the accused into custody and remand them to judicial custody as and when they appear before him in connection with the case under SCs and STs (POA) Act. In the instant case during the entire investigation, the police did not choose to arrest the accused persons. Moreover, this Court in Criminal Petition No.2061 of 2009 passed an order granting stay of arrest of the petitioners-accused and only allowed the investigation to go on. Under these circumstances, the argument that the petitioners-accused shall invariably be taken to custody by the learned Magistrate pending committal proceedings has no foundation. 5. It can be understood from Section 209 Cr. Moreover, this Court in Criminal Petition No.2061 of 2009 passed an order granting stay of arrest of the petitioners-accused and only allowed the investigation to go on. Under these circumstances, the argument that the petitioners-accused shall invariably be taken to custody by the learned Magistrate pending committal proceedings has no foundation. 5. It can be understood from Section 209 Cr. PC that when the Court directly issues summons to the accused to secure his attendance and in obedience thereto, the accused attends before the Magistrate, the Magistrate while committing case to the Court of Session can bind him over to the Sessions Court on his executing a bond, as provided under Section 441 Cr. P.C. Obtaining bail is not a requirement as per Section 209 Cr. P.C. Further, there is no provision under prevention of atrocities act for granting anticipatory bail to the person accused of having committed an offence under the said Act. Such being the situation when the Investigating Officer did not choose to arrest the accused, the Magistrate only issued summons to him after filing of the charge-sheet and when the accused attends the Court in compliance thereof remanding him to judicial custody at the time of committing the case to the Court of Session despite the fact that he is prepared to furnish sureties is illegal and contrary to procedure prescribed by the Code of Criminal Procedure. 6. From the language of Section 209 Cr. PC, it does not appear that at the time of committing the case to the Court of Session, the accused must be on bail granted by the Sessions Court. 7. Section 209 Cr. PC lays down that when it appears to the Magistrate that the offence is exclusively triable by Court of Session, he shall- (a) commit, after complying with the provisions of Section 207 or 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this Code, relating to bail, remand the accused to custody during; and until the conclusion of, the trial; The expression subject to the provisions of this Code relating to bail can only be understood to mean subject to the provisions in Chapter 33 of the Code. 8. 8. When the accused appeared before the Court on receiving summons from the Court issued after registering the PRC, and undertakes himself to appear before the Magistrate during the committal proceedings and also to appear before the Court of Session/Special Court and the accused not being arrested and released on bail earlier in connection with said case, need not be driven to obtain bail from the Court of Sessions/Special Court. Section 441(3) Cr. PC lays down, that if the case so requires the bond shall also bind the person released on bail to appear when called upon at the High Court or Court of Session or other Court to answer the charge. 9. There is no requirement in law that in each and every case triable by the Court of Session the accused shall be arrested and released on bail. When only summons were issued to the accused to secure his attendance after the charge-sheet is filed in a case triable by Court of Session the accused shall not be compelled to approach the Sessions Court/Special Court and to obtain bail. In every case triable by Court of Session unless the accused is arrested and is in judicial custody, the question of his obtaining bail from the Sessions Court does not arise while committing the case it is enough on the part of the committing Magistrate to bind over the accused with or without sureties undertaking to appear before the Sessions Court till the conclusion of the trial. 10. In view of the above, I absolutely see no force in the contention that unless the petitioners-accused are taken to custody by the Magistrate whenever they appear in a case involving offences punishable under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 it offends Section 18 of the said Act which prohibits grant of anticipatory bail. Irrespective of the nature of the offence, after cognizance is taken when the accused attends the Court in obedience to the summons issued by the Magistrate, issuing non-bailable warrants against them or taking them into custody is illegal and no such procedure is contemplated under the Code. 11. For the foregoing reasons, the non-bailable warrants issued by the learned Magistrate against the accused are hereby cancelled. 11. For the foregoing reasons, the non-bailable warrants issued by the learned Magistrate against the accused are hereby cancelled. The learned Magistrate is directed not to insist upon the petitioners accused to obtain bail from the Court concerned for the purpose of committing the case to the Court of Session or Special Court and the Magistrate can straight away commit the case by obtaining bonds from the accused with or without sureties to appear before the Special Court ensuring their attendance before the said Court till the conclusion of the trial. 12. The criminal petition is accordingly allowed.