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2023 DIGILAW 440 (AP)

Golla Satyanarayana v. State Of Andhra Pradesh

2023-02-22

B.S.BHANUMATHI

body2023
ORDER : The maintainability of the petition under Section 438 CrPC in respect of offences under Sections 324 & 506 IPC fell for consideration. 2. This Criminal Petition is filed under Section 438 of the CrPC by the petitioner seeking anticipatory bail in Crime No.229 of 2022 of Kalla Police Station, West Godavari District, which is registered for the offences punishable under Sections 341, 323, 324 and 506 IPC. 3. Heard Sri K.L.N.Swamy, learned counsel for the petitioner and the learned Assistant Public Prosecutor appearing for the respondent-State. 4. The case of the prosecution is that the petitioner caused fracture injury to the de facto complainant, G.Kedareswara Rao, and also threatened to kill the mother of the de facto complainant carrying knife in his hand. 5. Learned counsel for the petitioner submitted that initially all the offences for which the case is registered are bailable, however, due to inclusion of Section 324 IPC, the petitioner is constrained to seek anticipatory bail. He further submitted that there are civil disputes pending between the parties and that the petitioner may be granted anticipatory bail. 6. Learned Assistant Public Prosecutor opposed the petition stating that there are well founded accusations against the petitioner. He further submitted that the investigation is not yet completed and charge sheet is yet to be filed. 7. Section 438 (1) CrPC states that where any person has reason to believe that he may be arrested on an accusation of having committed a non bailable offence, he may apply for a direction that in the event of such arrest he shall be released on bail. Thus, the prerequisite for invoking Section 438 CrPC, is that the offence in respect of which it is invoked must be a non-bailable offence. 8. Section 324 IPC has been made non-bailable by CrPC Amendment Act, 2005 (Act 25 of 2005), vide Section 42 (f)(iii). Amendment Act 25 of 2005 has been brought into force by Notification S.O.923 (E), dated 21.06.2006, of the Ministry of Home Affairs, except certain sections mentioned therein, out which Section 42(f)(iii) is one provision. Thereafter, it has not been brought into effect till now. As such, though there is an amendment making Section 324 IPC as non-bailable, since it has not come into force, it is still a bailable offence. Consequently, the provision under Section 438 CrPC is not applicable. 9. Thereafter, it has not been brought into effect till now. As such, though there is an amendment making Section 324 IPC as non-bailable, since it has not come into force, it is still a bailable offence. Consequently, the provision under Section 438 CrPC is not applicable. 9. Insofar as Section 506 IPC is concerned, the Central legislation of CrPC, 1973 made it non cognizable & bailable. It was made cognizable and non-bailable insofar as the State of Andhra Pradesh is concerned vide APGOMs.No.732, dt.05.12.1991. But when it came up for consideration before the High Court of Andhra Pradesh in V. Sudhakar v. R. Rama Mohan Rao and others, 2006 (1) ALD (Crl.) (NOC) 17 AP and later in Juvvadi Raghu and others v. State of Tamilnadu, 2006 (2) ALD (Cr.) 634# 2006 (3) ALT (Crl.) 167, in which the earlier decision was followed, it was observed that the notification ceased its effect after six (6) months from the date of the said notification and thereafter its validity was not extended. It was held in para 4 in Juvvadi Raghu case as follows: “The factual aspect that the police did not obtain permission before proceeding with the investigation in Cr.No.8 of 2005 is not controverted. A case in Cr.No.8 of 2005 came to be registered against the accused for the offences under Sections 323, 506 r/w 34 of IPC. Admittedly Section 323 IPC is a non-cognizable offence. With regard to Sec.506 IPC, the offence was made cognizable only for six months and subsequently the period was not extended and, therefore, on the date of the incident in question, the offence under Section 506 IPC was also non-cognizable. A question came up for consideration as to whether Sec.506 IPC is cognizable or non-cognizable in V.Sudhakar v. R. Rama Mohan Rao and others [2006 (1) ALD (Crl.) (NOC) 17 (AP) wherein it has been held as follows: “It is seen that by virtue of a notification in G.O.Ms.No.732, Home (Court-B) dated 15.12.1991 (issued under Criminal Law Amendment Act, 1932 and Ordinance No.6 of 1972) published in A.P. Gazette Part I Extraordinary, dated 9.12.1991, offences punishable under Sections 186, 188, 189, 190, 228, 295-A, 298, 505, 506 and 507 IPC are made non-bailable offences. It should be noted that Ordinance No.6 of 1972 was promulgated amending certain provisions of the Criminal Law Amendment Act, 1932 was amended by A.P. Act 25 of 1979. It should be noted that Ordinance No.6 of 1972 was promulgated amending certain provisions of the Criminal Law Amendment Act, 1932 was amended by A.P. Act 25 of 1979. In view of Section 1(2) of the Criminal Law Amendment Act, 1932, that Act had no application to the territories which, immediately before the 1st November 1956, were comprised in Part B States. So it is clear that the Criminal Law Amendment Act, 1932, was not in force in Hyderabad District, of which Uppal, which presently is in Ranga Reddy District, was a part. It is only by virtue of Act 25 of 1979, i.e., the Criminal Law Amendment Act (A.P Extension and Amendment) Act, 1979 was the Criminal Law Amendment Act, 1932 extended to the whole of A.P, with effect from the date of that Act. By virtue of that A.P Act 25 of 1979, sub-section (3) was introduced in Section 10 (Power of State Government to make certain offences cognizable and non-bailable) of the Criminal Law (Amendment) Act, 1932. As per sub-section (3) of Section 10, a notification issued under sub-section (2) shall be in force for six months only, but the State Government may, by a like notification, extend it for any period not exceeding six months if they are satisfied that in the public interest it is necessary or expedient so to do. Thus, it is clear from sub-section (3) of Section 10 of the Criminal Law Amendment Act, 1932, that any notification issued under sub-section (2) of Section 10 of that Act would be in operation only for six months and the Government may, by a like notification, extend it for any period not exceeding six months, if it is satisfied that it is in the public interest it is necessary or expedient to do so. The above notification in G.O.Ms.No.732, referred to above, came into force on 9.12.1991. By virtue of Section 10(3) of the Criminal Law Amendment Act, 1932 that notification ceases to have effect after six months from the date of notification. Since no other notification extending the period of its validity is issued by the Government under sub-section (3) of Section 10 of the Criminal Law Amendment Act, 1932, it is clear that by the date of alleged offence, which took place on 8.11.1999, the notification in G.O.Ms.No.732 Home (Court-B) dated 15.12.1991, was not in force. Since no other notification extending the period of its validity is issued by the Government under sub-section (3) of Section 10 of the Criminal Law Amendment Act, 1932, it is clear that by the date of alleged offence, which took place on 8.11.1999, the notification in G.O.Ms.No.732 Home (Court-B) dated 15.12.1991, was not in force. Therefore, offence under Sections 186 and 506 IPC remains non-cognizable offences. Undisputedly the offence in question is said to have committed on 16.1.2005. Therefore, both the offence under Sections 323 and 506 IPC were non-cognizable as on the date of registration of the case in C.C.No.8 of 2005.” Therefore, Section 506 IPC remains as bailable as on date. Consequently, the relief under Section 438 CrPC cannot be sought in respect of Section 506 IPC. 10. The other offences under Sections 341, 323 IPC are also bailable. Thus, Section 438 CrPC has no application to those offences. 11. Thus, the present petition is under Section 438 CrPC is not maintainable. 12. Accordingly, the Criminal Petition is dismissed. Pending miscellaneous applications, if any, shall stand closed.