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2022 DIGILAW 618 (AP)

Sk. Akthar Roshan v. State of Andhra Pradesh

2022-07-06

SUBBA REDDY SATTI

body2022
JUDGMENT Subba Reddy Satti, J. - Accused No. 1 in Crime No. 48 of 2021 of Kothapeta Police Station, East Godavari District, filed the above criminal petition under Section 438 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') seeking pre-arrest bail. 2. The case of the prosecution is that initially a report given by Mohammed Khasim Saheb, resident of Kothapeta village, East Godavari District, stating that his son Mohammed Abdul Khadar, who was working as opting driver, left his house on 24.01.2021 at about 6.00 a.m. on his Hero Honda CBZ Xtream motorcycle bearing No. AP05 BE 8807 and did not return to home. Basing on the said report, police registered the above crime under the Head 'Man Missing'. In the said report, it was stated that about two years back, he brought one marriage alliance to his son with the petitioner herein, who is resident of Nandigama, Krishna District, but the parents of petitioner did not agree for the same. Later, he came to know that his son and the petitioner used to talk over phone and his son also used to meet the petitioner secretly. On 24.01.2021, he came to know that his son went to meet the petitioner, but when he enquired the petitioner, her father and uncle, they stated that they are not connected with the missing of his son. During the course of investigation, owing to recovery of cell phone of missing man Khadar, basing on strong suspicion, on 21.09.2021 at 3.30 a.m., police apprehended A-2 and A-3, near the house of A-3 at Thokalavaripalem village, Kolluru Mandal, Guntur District. On enquiry, A-2 and A-3 confessed that petitioner loved one Kancharla Naveen Babu (A-2), who belongs to SC-Mala community and in the year 2017. A2 proposed his love to petitioner and she accepted for the same. However, the parents of petitioner did not accept for it and they brought a marriage alliance to petitioner with one Khadar (Missing Man), but the petitioner rejected the same. Thereafter, petitioner informed him over phone that said Khadar used to harass her by making phone call to her and she proposes to A2 to kill the said Khadar. However, the parents of petitioner did not accept for it and they brought a marriage alliance to petitioner with one Khadar (Missing Man), but the petitioner rejected the same. Thereafter, petitioner informed him over phone that said Khadar used to harass her by making phone call to her and she proposes to A2 to kill the said Khadar. Accordingly, on 24.01.2021, A2 along with his cousin, Vasumalla Ashok (A-3) and petitioner hatched a plan and took the said Khadar to the room of his friend Narasimha at Naidupeta, Guntur, where Naveen Babu and petitioner strangulated the neck of Khadar with a skipping rope and said Ashok caught hold of legs of Khadar and killed him. Thereafter they concealed the dead body into gunny bags and thrown the same in Krishna River at Penumudi bridge. Police recorded the confession of A-2 and A-3 and arrested them under the cover of mediators report. Basing on the same, section of law was altered from 'Man Missing' to Section 120-B, 302, 404, 201 of IPC. 3. Counter affidavit is filed on behalf of the respondent-State stating that petitioner along with her associates A-2 and A-3 conspired together and executed the murder of deceased and subsequently disposed of the dead body without leaving trace of it. On careful analysis of call data (CDRs) among A-1 to A-3, tower locations of A-1 to A-3 and deceased, especially the conversation of A-1 with deceased luring him to come to Guntur, pointed out towards the guilt of A-1 to A-3. The voice test for conversations of A-1 with deceased had to be sent to FSL after taking sample voice of A-1, for which, the presence of petitioner is required. Moreover, the dead body is not yet recovered, and investigation is still pending and at this stage, petitioner is not entitled for pre-arrest bail. It is further stated that subsequent to filing of the writ petition by the petitioner herein, this Court on 21.09.2021 called for a report from the Additional Director General of Police, who submitted the report on 23.09.2021 and thereafter in view of irregularities found in conducting investigation, the Sub Inspector of Police was suspended. It is further stated that taking advantage of the same, A-2 and A-3 are not cooperating with the investigation. It is further stated that taking advantage of the same, A-2 and A-3 are not cooperating with the investigation. Finally, it is stated that material recovered from A-2 and A-3, prima facie shows the role and complexity of petitioner in the commission of offence and prayed to dismiss the petition. 4. Heard Sri Raja Reddy Koneti, learned counsel for the petitioner and Sri S.V. Sainath learned Special Assistant Public Prosecutor for State. 5. Learned counsel for the petitioner would submit that when the parents of petitioner wanted to perform her marriage against her will, she gave a complaint in Nandigama Police Station and in fact, petitioner paid Rs. 50,000/- to her father, as demanded by him towards the amount spent by him for her education and also for leaving her to live peacefully. He further submits that petitioner also gave warning to the said Khadar when he followed and teased her. He also submits that petitioner even gave a complaint to Superintendent of Police, Guntur Urban in Spandana programme on 15-2-2022, when Kothapeta police telephoned and asking her to attend to police station. He further submits that petitioner married A-2 and petitioner infact informed Khadar about the same. He submits that on 30.08.2021, Kothapeta Police kidnapped her husband, A-2 and his relative A-3, took them to Kothapeta police station and tortured them in police station by keeping them in illegal custody. On coming to know it, petitioner along with her mother-in-law and others went to Kothapeta police station. Police even tortured the petitioner mentally and physically for three days. He further submits that at that time, petitioner was pregnant and later, as there was problem to the petitioner, the police due to fear forced her mother-in-law to take away petitioner to native place. 6. Learned counsel for the petitioner further submits that A-2 and A-3 were kept in police station for about 20 days and third degree methods were used on them and coerced them to confess the offence. He submits that having no other go, petitioner filed habeas corpus writ petition on 20.09.2021 and having come to know of it, police hurriedly got created panchanama as if A-2 and A-3 were arrested and produced them before the concerned Court. He submits that having no other go, petitioner filed habeas corpus writ petition on 20.09.2021 and having come to know of it, police hurriedly got created panchanama as if A-2 and A-3 were arrested and produced them before the concerned Court. He submits that counter affidavit filed by the State in W.P. No. 20966 of 2021, would disclose that petitioner was detained in Kothapeta Police Station from 02.09.2021 to 05.09.2021 and A-2 and A-3 were detained in Kothapeta police station without following any legal procedures, as such the Sub Inspector of Police was kept under suspension. He submits that unable to find out any evidence in the Man Missing case, the police implicated petitioner in this case on flimsy grounds. He submits that there is no evidence on record to show that the person who was found missing is dead. He submits that subsequent to filing of writ petition, police are trying to apprehend the petitioner, who is well educated woman, living on her own by marrying a person of her choice and the arrest of petitioner is not essential and there is no material on record to connect the petitioner with the crime. He finally prayed the Court to grant pre-arrest bail to the petitioner. 7. Per contra, learned Special Assistant Public Prosecutor would submit that the investigation so far done reveals that the petitioner along with A-2 and A-3 conspired together and executed the murder of deceased and subsequently disposed of the dead body without leaving traces of it. He submits that voice test for conversations of A-1 with deceased had to be sent to FSL after taking sample voice of A-1, for which, the presence of petitioner is required and moreover, the dead body is not yet recovered and investigation is still pending and at this stage, petitioner is not entitled for pre-arrest bail. He further submits that the material recovered from A-2 and A-3, prima facie, establish the role and complexity of petitioner in the commission of offence and prayed to dismiss the petition. 8. I have given my anxious consideration and perused the record and instructions. 9. The application is filed under Section 438 Cr.P.C. seeking release of the petitioner on bail. He further submits that the material recovered from A-2 and A-3, prima facie, establish the role and complexity of petitioner in the commission of offence and prayed to dismiss the petition. 8. I have given my anxious consideration and perused the record and instructions. 9. The application is filed under Section 438 Cr.P.C. seeking release of the petitioner on bail. The Court had to take into consideration several aspects, while granting bail, viz., gravity of crime, character of the evidence, position and status of the accused with reference to victim and witnesses, likelihood of accused fleeing away from justice and repeating the offence, possibility of his tampering with the witnesses and obstructing the course of justice etc. 10. In Dataram Singh vs. State of Uttar Pradesh and Ors. (2018) 3 SCC 22 , the Hon'ble Apex Court held thus: 6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India [ 2017 (13) SCALE 609 ] going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab [ (1980) 2 SCC 565 ] in which it is observed that it was held way back in Nagendra v. King-Emperor [AIR 1924 Cal 476] that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson [ AIR 1931 All 356 ] wherein it was observed that grant of bail is the Rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days. 7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 11. The parameters for granting anticipatory bail are no more res integra. The Hon'ble Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 11. The parameters for granting anticipatory bail are no more res integra. The Hon'ble Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors. AIR 2011 SC 312 has laid down the following guidelines: 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 the accused has 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. 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. 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.' It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge.' 12. A perusal of the record shows that initially case was registered under the Head 'Man Missing' and subsequently, only basing on the confession of A-2 and A-3, section of law was altered to Section 120-B, 302, 404, 201 of IPC and the petitioner herein is arrayed as A-1. However, as per Section 25 of the Indian Evidence Act, no confession made to a police officer, shall be proved as against a person accused of any offence and there are catena of pronouncements with regard to admissibility of statement made by the accused before the police officer. 13. In Bullu Das Vs. State of Bihar (1998) 8 SCC 130 , while dealing with the confessional statements made by the accused persons before a police officer, the Supreme Court held as under: '7. The confessional statement, Ex. 5, stated to have been made by the appellant was before the police officer in charge of the Godda Town Police Station where the offence was registered in respect of the murder of Kusum Devi. The confessional statement, Ex. 5, stated to have been made by the appellant was before the police officer in charge of the Godda Town Police Station where the offence was registered in respect of the murder of Kusum Devi. The FIR was registered at the police station on 8-8-1995 at about 12.30 p.m. On 9-8-1995, it was after the appellant was arrested and brought before Rakesh Kumar that he recorded the confessional statement of the appellant. Surprisingly, no objection was taken by the defence for admitting it in evidence. The trial court also did not consider whether such a confessional statement is admissible in evidence or not. The High Court has also not considered this aspect. The confessional statement was clearly inadmissible as it was made by an accused before a police officer after the investigation had started.' 14. Apart from that, in habeas corpus writ petition filed by the petitioner herein, this Court directed the matter be investigated through Additional Director General of Police (Law & Order) and also directed to submit report to the Court. Accordingly, a report was submitted to this Court, wherein it was clearly stated about the detention of petitioner herein in Kothapeta Police Station and also about detention of A-2 and A-3 in Lockup-1 in the police station. In fact, the Sub Inspector of Police, Kothapeta Police Station was suspended. 15. A perusal of the mediators report manifests that it was drafted on 21-9-2021 at 3-30 AM at D. No. 6-39-1, Thokalavaripalem, Kollur Mandal, Guntur District. However, the learned counsel for the petitioner would contend that after filing of writ petition qua illegal custody of A2 and A3, the report was reduced into writing as it drafted at Thokalavaripalem, Kollur Mandal of Guntur District whereas A2 and A3 are in illegal custody of police at Ravulapalem. In fact, basing on the report, SHO was suspended. Though this court at the time of grant of bail need not go into merits of the matter, since the offence is under Sec 302 IPC this Court also intend to consider the above aspect pleaded by the learned counsel for the petitioner. In the absence of mediators report and alleged confession by A2 and A3 qua the crime, involvement of A1 in the said crime prima facie is not well founded. In the absence of mediators report and alleged confession by A2 and A3 qua the crime, involvement of A1 in the said crime prima facie is not well founded. Keeping the condition of A1, being mother of months baby, this Court consider the case of petitioner for grant of pre-arrest bail. Moreover, as per the material on record, A-2 and A-3 were granted regular bail by the learned Sessions Judge by observing that material part of the investigation is completed. 16. In the present case, petitioner being woman, custodial interrogation by the police is not necessary. Further, recently petitioner delivered a baby and she has to take care of baby. On perusal of entire material on record, material part of the investigation is completed. There cannot be any apprehension for the prosecution that if the petitioner is granted pre-arrest bail, she may influence the witnesses and tamper with evidence. In the facts and circumstances of the case, this Court is of the opinion that petitioner is entitled for pre-arrest bail. 17. Accordingly, the criminal petition is allowed and the petitioner shall be enlarged on bail in the event of her arrest in connection with Crime No. 48 of 2021 of Kothapeta Police Station, East Godavari District, on her executing a personal bond for a sum of Rs. 50,000/- (Rupees fifty thousand only) with two sureties each for a like sum to the satisfaction of Station House Officer, Kothapeta Police Station, East Godavari District. After release, petitioner shall not influence the witnesses or tamper with evidence and shall cooperate with investigation. It is made clear that the findings in this order be construed as expression of opinion only for the limited purpose of considering the bail in the above crime and shall not have any bearing in any other proceedings. As a sequel, all the pending miscellaneous applications shall stand closed.