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2022 DIGILAW 579 (AP)

Nityananda Kebalogop v. State of Andhra Pradesh

2022-06-27

SUBBA REDDY SATTI

body2022
ORDER This Criminal Petition is filed under Section 439(1)(b) and 440 of the Code of Criminal Procedure, 1973 seeking relaxation of the conditions. 2. The petitioners are A-1 and A-2 in Crime No.35 of 2022 of Gopalapuram Police Station of West Godavari District. 3. Learned IX Additional Sessions Judge, West Godavari at Kovvur by order dated 07.06.2022 granted bail to the petitioners herein by imposing the following conditions. “…this petition is allowed. The petitioners/Accused Nos.1 and 2 are ordered to be enlarged on bail on execution of personal bonds for Rs.50,000/- each with two sureties each who are local persons only i.e., Andhra Pradesh sureties for a like sum to the satisfaction of the learned Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Kovvur. On their release, the petitioners/Accused No.1 and 2 shall report before the Station House Officer, Gopalapuram Police Station, twice in a month i.e., 15th day and 30th day of every month between 10 a.m and 5 p.m and they shall make themselves available as and when the investigation officer requires their presence for the purpose of investigation for a period of three months or till filing of charge sheet whichever is earlier”. 4. The case of the prosecution is that, the deceased, A-1 and A-2 and other two accused left the mess and after sometime, all the accused except the deceased returned to mess in drunken state. By that time, the other worker asked the accused about the deceased, they replied that the deceased is lying in jungle in drunken state. The labour searched for deceased and found his dead body lying in a jungle. One Birbal Gope, Rahesh Gope and Rajkishore Gope shifted the body of the deceased to Nischantapur. The accused along with the deceased belong to Nischantapur of West Bengal State and they came down to Andhra Pradesh to work as daily labourers. The wife of the deceased made a complaint suspecting that accused 1 and 2 along with other accused murdered the deceased and thrown away his dead body. The complainant filed a private complaint before the Chief Judicial Magistrate of Prilia of West Bengal State. The complaint was referred to the police station, Pura District of West Bengal vide petition No.163 of 2018 and the same was registered as a case in Crime No.12 of 2019 for the offences punishable under Sections 302 and 201 read with 34 of IPC. The complaint was referred to the police station, Pura District of West Bengal vide petition No.163 of 2018 and the same was registered as a case in Crime No.12 of 2019 for the offences punishable under Sections 302 and 201 read with 34 of IPC. The investigation officer came to conclusion that the incident was happened at Gopavaram Village of West Godavari District, Andhra Pradesh. The investigation officer filed a memo before the Court of learned Chief Judicial Magistrate of Purilia to transfer the case and accordingly after receipt of case file, the Gopalapuram Police Station re-registered the case in Crime No.12 of 2019 of Hura Police Station as case in Crime No.35 of 2022 for the offences punishable under Sections 302 and 201 read with Section 34 of IPC and took up investigation. Basing on the postmortem report of the deceased, the medical officer opined that the death was due to the effect of poison as noted in the postmortem certificate ante mortem in nature. The investigation officer conducted investigation and arrested the accused 1 and 2 and the remaining accused found absconding. 5. Heard Sri Mangena Sree Ramarao, learned counsel for the petitioners and learned Special Assistant Public Prosecutor for the State. 6. Learned counsel for the petitioners would contend that directing the petitioners to produce local sureties is onerous. Petitioners, being laborers, belong to state of West Bengal came down to Andhra Pradesh and are eking out livelihood by doing cooly work. Thus, directing petitioners to produce local sureties is onerous and impossible to comply with. Thus, prayed to relax that condition. He relied upon (1) Moti Ram and others v. State of Madhya Pradesh (2) Keshab Narayan Banerjee and another Vs. The State of Bihar, (3) K.L.Verma v. State and another (4) Sumit Mehta vs. State (NCT of Delhi). 7. Learned Special Assistant Public Prosecutor opposed the petition. He would contend that the offence is punishable under Section 302 of IPC. The petitioners 1 and 2 belong to West Bengal State. Learned Sessions Judge imposed such conditions to ensure the presence of the petitioners during trial as such, he prayed for dismissal of the petition. 8. I have given my anxious consideration. Perused the material. 9. The petitioners, as per the prosecution, involved in the offence punishable under Sec 302 IPC. The petitioners 1 and 2 belong to West Bengal State. Learned Sessions Judge imposed such conditions to ensure the presence of the petitioners during trial as such, he prayed for dismissal of the petition. 8. I have given my anxious consideration. Perused the material. 9. The petitioners, as per the prosecution, involved in the offence punishable under Sec 302 IPC. Petitioners are residents of state of West Bengal and committed offence in the state of Andhra Pradesh. While granting bail, the learned Sessions Judge imposed certain conditions and one such condition is to produce local sureties. 10. Whether imposing such conditions is onerous is no longer res integra. In Moti Ram and others v. State of Madhya Pradesh, (1978) 4 SCC 47 and their Lordships deprecated the practice of demanding heavy sums by way of bail and held that: “4. … The victims, when suretyship is insisted on or heavy sums are demanded by way of bail or local bailers alone are persona grata, may well be the weaker segments of society like the proletariat, the linguistic and other minorities and distant denizens from the far corners of our country with its vast diversity. In fact, the grant of bail can be stultified or made impossibly inconvenient and expensive if the Court is powerless to dispense with surety or to receive an Indian bailor across the district boarders as good or the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive. The problem is plainly one of human rights, especially freedom vis-à-vis the lowly….” 11. In Keshab Narayan Banerjee and another Vs. The State of Bihar, AIR 1985 SC 1666 the Hon’ble Apex Court held that – "The condition imposed by the High Court for enlarging appellant No. 1 on bail, namely that he should furnish security for rupees one lakh in cash or in fixed deposit of any nationalized bank in Bihar with two local sureties residing in State of Bihar each to a like amount appears excessively onerous and in the circumstances of this case, it virtually amounts to denial of bail itself." 12. In K.L.Verma v. State and another, (1998) 9 SCC 348 the Hon’ble Apex held that while granting bail, conditions can be imposed for securing the rights of the investigating agency and to proceed with the investigation, fairly and properly. In K.L.Verma v. State and another, (1998) 9 SCC 348 the Hon’ble Apex held that while granting bail, conditions can be imposed for securing the rights of the investigating agency and to proceed with the investigation, fairly and properly. In imposing conditions, the Court must be extremely chary and see that they maintain a balance between the personal liberty of the accused and investigational rights of the police. Similar proposition has been laid down by the Supreme Court in the matter of Sumit Mehta vs. State (NCT of Delhi), (2013) 15 SCC 570 in which it has been held as under:- “11. While exercising power under Section 438 of the Code, the Court is duty-bound to strike balance between the individual’s right to personal freedom and the right of investigation of the police. for the same, while granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the Court while imposing conditions must be exercised with utmost restraint. 12. The law presumes an accused to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution. 13. We also clarify that while granting anticipatory bail, the Courts are expected to consider and keep in mind the nature and gravity of accusation, antecedents of the applicant, namely about his previous involvement in such offence and the possibility of the applicant to flee from justice. It is also the duty of the Court to ascertain whether accusation has been made with the object of injuring or humiliating him by having him so arrested. It is needless to mention that the Courts are duty bound to impose appropriate conditions as provided under sub Section (2) of Section 438 of the Code. 14. It is also the duty of the Court to ascertain whether accusation has been made with the object of injuring or humiliating him by having him so arrested. It is needless to mention that the Courts are duty bound to impose appropriate conditions as provided under sub Section (2) of Section 438 of the Code. 14. Thus, in the case on hand, fixed deposit of Rs.1,00,00,000/- for a period of six months in the name of the complainant and to keep the FDR with the investigating officers’ as condition precedent for grant of anticipatory bail is evidently onerous and unreasonable. It must be remembered that the Court has not even come to the conclusion whether the allegations made are true or not which can only be ascertained after completion of trial. Certainly, in no words are we suggesting that the power to impose a condition of this nature is totally excluded, even in cases of cheating, electricity pilferage, white-collar crimes or chit fund scams etc. 15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a Court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstances and effective in the pragmatic sense and should not defeat the order of grant of bail.” 13. Thus, in view of the ratio laid down in the above authoritative pronouncements, imposing condition by the learned Sessions Court while granting bail to produce local sureties is onerous condition and the same needs modification. 14. Hence, considering the facts and circumstances of the case, this Criminal Petition is partly allowed. The condition i.e. two sureties each who are local persons alone is hereby relaxed, however to ensure the presence of accused during the course of trial, this Court imposed further conditions. (1) The petitioners are ordered to be enlarged on bail on their executing each a personal bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties each for a like sum to the satisfaction of the learned Principal Junior Civil Judge-cumJudicial Magistrate of First Class, Kovvur. (2) The petitioners shall execute a bond for attendance to the concerned Court(s). (1) The petitioners are ordered to be enlarged on bail on their executing each a personal bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties each for a like sum to the satisfaction of the learned Principal Junior Civil Judge-cumJudicial Magistrate of First Class, Kovvur. (2) The petitioners shall execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioners shall not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioners also promise to appear before the higher Court in terms of Section 437-A Cr.P.C. (3) The petitioners shall produce original documents along with the sureties before the learned Magistrate. The petitioners shall, within thirty days of release from prison, procure a smartphone, and inform its IMEI number and other details to the Station House Officer, Gopalapuram Police Station. The petitioners shall keep the phone location/GPS always on the "ON" mode. Whenever the Investigating officer asks to share the location, then the petitioners shall immediately do so. The petitioners shall neither clear the location history, WhatsApp chats, calls nor format the phone without permission of the concerned SHO/I.O.