State of Andhra Pradesh vs Byreddy Siddarth Reddy

C. Praveen Kumar, J.

Criminal Petition Nos. 12385, 12616, 12617, 12618 are filed under Section 439(2) Cr.P.C., by the wife of the deceased, seeking cancellation of bail granted to A5, A6, A8 to A11 and A1 to A4 respectively, in Crime No. 119 of 2014 of III Town Police Station, Kurnool, by the I Additional Sessions Judge, Kurnool. The State also filed Crl. P No. 11902 of 2014 seeking cancellation of bail granted to A5. Since all the applications are filed against the order of granting bail in the same crime, the same are being disposed of by this common order.

The allegations in the charge-sheet are as under:

The deceased Bestha Saieswarudu was a resident of Muchumarru Village in Kurnool District. Accused Nos. 1 to 4 are the staunch followers of accused Nos. 5 to 7. Accused No. 5 is the grandson of accused No. 6 and younger brother''s son of accused No. 7. Accused No. 6 is the father of accused No. 7 and grandfather of accused No. 5. Accused Nos. 8 to 13 are their associates and also members of a political party floated by accused No. 7. Accused No. 14 was said to be the friend of accused No. 5. The deceased who was an active political worker got elected as Vice-Chairman of Agricultural Market Yard, Nandikotkur. He was a strong follower of accused Nos. 6 and 7. Having fed up with the high-handed activities of the accused, the deceased is alleged to have come out of their association and started living separately by cultivating his own lands.

It is alleged that when the deceased came out of their association, accused Nos. 6 and 7 started harassing the deceased suspecting his interference with their activities by colluding with the members of the opposite group. As the deceased was not following the commands and dictates of the accused, he was attacked by the followers of the accused on 12.6.2002. In respect of the said incident a case in Crime No. 18 of 2002 of Pagidyala Police Station came to be registered for the offences punishable under Sections 147, 148 and 324 read with 149 IPC. On 12.5.2004 accused No. 6 and some other accused with the active assistance of accused No. 7 are alleged to have demolished the house of the deceased in Muchumarri Village. In respect of the above incident a case in Crime No. 34 of 2004 of Pagidyala Police Station came to be registered for the offences punishable under Sections 147, 427 and 379 read with 149 IPC. Suspecting an attack, the deceased shifted to Kurnool but however continued his political activity. According to the prosecution the deceased could win over number of persons who were earlier supporting the accused. The said act of the deceased was not to the liking of accused Nos. 6 and 7. It is alleged that the accused felt that the presence of the deceased would cause great loss to them in Panchayat Elections to be held shortly then. The averments in the charge-sheet further discloses that in the joint elections held in the year 2004 and 2009 the party supported by the deceased won the elections as against the candidates supported by the accused.

The averments in the charge-sheet further discloses that the deceased was telling the informant that A7, his father and Byreddy Sudharshan Reddy bore grudge against him and that they might kill him. In the month of February, 2014 accused No. 7, along with his gunman LW31, is alleged to have gone to the house of accused No. 6 in Kamala Nagar, Kurnool Town. LW31 is said to have witnessed the meeting of accused Nos. 5 to 7 with accused Nos. 2 to 4. Thereafter, accused No. 1 is alleged to have taken accused Nos. 8 to 13 to the house of accused No. 6, where accused Nos. 5 and 7 were also present. The confession made by the accused show that A5 is alleged to have asked his gunman to stay outside. On 12.3.2013, in the process of recce, accused No. 1 is alleged to have talked from his Phone No. 7675898689 with accused No. 12 bearing Phone No. 9652839701 stating that accused Nos. 5 to 7 expressed annoyance with regard to the delay in executing the plan after accepting one lakh as advance. In the conversation, accused No. 5 is alleged to have abused accused No. 1 for not completing the work. On the same day, accused No. 1 is alleged to have gone to the house of accused No. 11 and requested him to provide the arms. On the next day i.e., 13.3.2014 accused No. 1 is alleged to have brought the said arms from the house of accused No. 6, kept them in two autos and again made a reconnaissance at Revenue Colony. An attempt was made on 14.3.2014 to kill the deceased but could not execute the plan as the deceased was accompanied by someone in his motor cycle. Ultimately on 15.3.2014 at about 5.45 p.m., all the accused except accused Nos. 5 to 7 formed themselves into an unlawful assembly, armed with weapons and in furtherance of their premeditated conspiracy with accused Nos. 5 to 7, the other accused waited in two autos at Ganesh Nagar Road near Shakuntala Kalyana Mandapam. Pursuant to a call made by accused No. 1 to the other accused, all of them i.e., accused Nos. 1 to 4, 8 to 13 assembled and then split into two groups. In one auto, accused No. 11, along with accused Nos. 12 and 13, alleged to have gone to super market and laid a wait. In another auto, which was driven by accused No. 10, accused Nos. 1 to 4 and accused Nos. 8 to 10 are alleged to have gone towards Prathibha School, Nandyal Check Post road and kept a watch. At about 5.45 p.m., the deceased came out of the house and was proceeding towards the main road followed by LWs.1 and 2 at distance, to go to a market for purchasing provisions. At that point of time, accused No. 10 drove the auto slowly behind the deceased and when the said auto reached the deceased, accused No. 1 got down from the auto and hacked the deceased with a cleaver on his right side cheek and neck. When the deceased tried to run away, accused No. 2 armed with knife alleged to have hacked the deceased over his head from his back side, due to which the deceased collapsed on his knees. Accused Nos. 8, 9 and 10 armed with sickles and knives got down from the auto and stood as a guard on the road. While accused No. 3, who was armed with a knife alleged to have stabbed the deceased on his stomach, accused No. 4 alleged to have hacked the deceased on the head and on the back side. The averments in the charge-sheet further disclose that accused Nos. 1 to 4 hacked the deceased indiscriminately on his face, head and on the back side causing instantaneous death. On seeking LWs.1 and 2 coming towards the scene of offence, the accused alleged to have escaped in their autos. On hearing the cries of deceased, LWs.6 and 7 who are resident of Revenue Colony came out and witnessed the incident and also saw the deceased being attacked by four unknown persons. After committing the offence, the accused are alleged to have thrown away their blood stained clothes, changed their dress, reached Somasila Village in a boat and then went to Kollapur in an auto. On the basis of the report given by an eye-witness to the incident, a case in Crime No. 119 of 2014 was registered for the offences punishable under Sections 120(b), 148, 302 and 109 read with Section 149 IPC. After completing the investigation, the police filed the charge-sheet.

Sri O. Kailashnath Reddy, learned Counsel for the petitioner strenuously contends that insofar as the findings given, while granting bail to A5, are quite contradictory to the findings given, while rejecting the bail application. He submits that the statements of LWs.1, 2 and LW31 amply establish the conspiracy of A5 to A7 and also the part played by A1 to A4 and A8 to A11 in the commission of the offence. He further submits that subsequent to the incident, the accused, who were released on bail, started interfering with the investigation and are threatening the witnesses. He relied upon an SMS message sent by one Nagi Reddy and also registration of Crime No. 245 of 2014 of III Town Police Station, Kurnool, pursuant to the SMS received. Relying upon a photograph of said Nagi Reddy with A5, which has been passed across the bar, the learned Counsel for the petitioner contends that it is a fit case for cancellation of bail.

On the other hand, Sri T. Niranjan Reddy, learned Senior Counsel appearing for A5, Sri P. Veera Redely, learned Senior Counsel appearing for A6, Sri V. Nitesh and Sri Laxmi Reddy, learned Counsel appearing for the other accused contend that since the present applications are filed seeking cancellation of bail, the Court can only take into consideration the post bail events. According to them, the petitioner has not filed any appeal challenging the order granting bail. Even otherwise, they submit that this being a faction case where implication of the accused cannot be ruled out, bail cannot be cancelled as a matter of course. Since the respondents have fixed abode and as the police have completed investigation and filed charge-sheet, it is urged that the situation does not warrant cancellation of bail.

Before proceeding further, it would be useful to refer to the prayer of the petitioner in all the petitions filed for cancellation of bail, which is as under:

"It is therefore prayed that this Hon''ble Court may be pleased to cancel the bail granted to (i) Respondent No. 2 (accused No. 5) by order dated 26.8.2014 in Crl. MP No. 1669 of 2014 in Crime No. 119 of 2014, (ii) Respondent No. 2 (accused No. 6) by order dated 23.9.2014 in Crl. MP No. 1831 of 2014 in PRC No. 73 of 2014, (iii) Respondent Nos. 2 to 5 (accused Nos. 8 to 11) by order dated 23.9.2014 in Crl. MP No. 1816 of 2014 in PRC No. 73 of 2014 and (iv) Respondent Nos. 2 to 5 (accused Nos. 1 to 4) by order dated 23.9.2014 in Crl. MP No. 1815 of 2014 in PRC No. 73 of 2014/in Crime No. 119 of 2014 of III Town Police Station, Kurnool passed by I Additional Sessions Judge, Kurnool, pending investigation and trial into the said case, in the interest of justice."

From a reading of the prayer, it is clear that the wife of the deceased sought for cancellation of bail granted to the accused by the Sessions Court. While dealing with such a situation, the apex Court in Union of India (UOI) Vs. Hassan Ali Khan and Another, , held as under:

"40. As far as Mr. Bagaria''s submissions regarding Section 439(2) Cr.P.C., are concerned, we cannot ignore the distinction between an application for cancellation of bail and an appeal preferred against an order granting bail. The two stand on different footings. While the ground for cancellation of bail would relate to post-bail incidents, indicating misuse of the said privilege, an appeal against an order granting bail would question the very legality of the order passed. This difference was explained by this Court in State Vs. Amarmani Tripathi, .

In Dolat Ram and Others Vs. State of Haryana, , the apex Court held as under:

Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are : interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."

From the judgments of the apex Court, referred to above, it is clear that different yard sticks have to be adopted for cancellation of bail and interference with an order granting bail. The apex Court also held that while dealing with an application for cancellation of bail, the Court should take into consideration the post bail conduct and supervening circumstances for deciding as to whether it requires cancellation of bail.

As seen from the above, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail already granted. Normally, the grounds for cancellation of bail are interference or attempt to interfere with due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. Of course, as held by the apex Court, these are all only few illustrative material and it all depends upon the circumstances of each case.

As stated earlier, the learned Counsel for the petitioner relied upon two circumstances seeking cancellation of bail. The first circumstance being registration of Crime No. 245 of 2014 of III Town Police Station, Kurnool, pursuant to an SMS message received by the petitioner from one Nagi Reddy. The second circumstance is the presence of one Nagi Reddy in the company of A5 in a photograph, which has been passed on, across the bar, at the time of the argument.

Insofar as the first issue is concerned, pursuant to an SMS message received by the petitioner herein, a case in Crime No. 245 of 2014 of III Town Police Station, Kurnool was registered for an offence punishable under Section 507 IPC. The said crime was registered on 19.6.2014 against one P. Nagi Reddy. The First Information Report, which has been registered against one Nagi Reddy, is silent as to the role of any of the accused in the crime. The said Nagi Reddy is not an accused in the present crime. The learned Counsel for the petitioner urges that if a stranger or a person who has nothing to do with the accused sends an SMS threatening the informant, the accused cannot be put to blame for the said act. He submits that there is every possibility of a person associated with the prosecution party sending the message making it a ground for cancellation of bail on the said score. The argument of the learned Counsel for the respondent cannot be brushed aside at this stage. This being a faction case, the possibility of said message being sent by a rival group, cannot be ruled out. Apart from that the Public Prosecutor on instructions did not place any material to show as to who the said Nagi Reddy is and his relationship with the accused.

Further, the learned Counsel for the petitioner relied upon a photograph, wherein the said Nagi Reddy is alleged to have been found in the presence of A5. Sri T. Niranjan Reddy, the learned Senior Counsel appearing for the respondent, strenuously disputes the same. He submits that when the identity of the said Nagi Reddy is not established, it cannot be presumed that the person present in the photograph is Nagi Reddy. Therefore, the two circumstances relied upon by the learned Counsel for the petitioner do not form a basis for cancellation of the bail.

One of the arguments advanced by the learned Counsel for the petitioner is that though the prayer is for cancellation of bail, but if the petition is read as a whole, it conveys a meaning that the petitioner has filed the present application challenging the very order of granting bail. The learned Senior Counsel for the respondent/accused opposed the same, contending that the prayer in the petition is only for cancellation of bail and that the same does not convey a meaning as if it was filed challenging the very grant of bail.

Even assuming for the sake of argument that the present application is filed questioning the very order of granting bail, the question would be; "Whether the bail granted to the accused warrants cancellation."

Relying upon the observations made by the apex Court in CBI, Hyderabad Vs. Subramani Gopalakrishnan and Another, and other judgments of the apex Court, the learned Senior Counsel for the respondents submits that the petitioner should have preferred an appeal if really he is challenging the order granting bail. But, however, the three Judges Bench of the apex Court in Dr. Narendra K. Amin Vs. State of Gujarat and Another, , held as under:

"18. As is evident from the rival stands, one thing is clear that the parameters for grant of bail and cancellation of bail are different. There is no dispute to this position. But the question is if the trial Court while granting bail acts on irrelevant materials or takes into account irrelevant materials whether bail can be cancelled. Though it was urged by learned Counsel for the appellant that the aspects to be dealt with while considering the application for cancellation of bail and on appeal against the grant of bail, it was fairly accepted that there is no scope for filing an appeal against the order of grant of bail. Under the scheme of the Code the application for cancellation of bail can be filed before the Court granting the bail if it is a Court of Session or the High Court.

The High Court also erroneously held that there was a ban in granting bail in heinous crime.

It has been fairly accepted by learned Counsel for the parties that in some judgments the expression "appeal in respect of an order of grant of bail" has been used in the sense that the State can move the higher Court."

While dealing with the parameters to be observed, while cancelling the bail already granted, the Supreme Court in Dolat Ram''s case (supra), has categorically held that very cogent and overwhelming circumstances are necessary for an order directing cancellation of the bail already granted. The apex Court has observed that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conductive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.

In fact in Sanjay Chandra Vs. CBI, , the apex Court, while dealing with the offences under Sections 420, 468, 471, 109 IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, observed as under:

In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances."

In Hazari Lal Das Vs. State of West Bengal and Another, , the apex Court, while dealing with the aspect of cancellation of bail, held as under:

"7. There is nothing on record that there has been interference or attempt to interfere with the due course of administration of justice by the appellant. It also does not appear from the record that the concession granted to him has been abused in any manner. No supervening circumstances have surfaced nor shown justifying cancellation of anticipatory bail. The judicial discretion exercised by the Sessions Judge in granting the anticipatory bail has been interfered with by the High Court in the absence of cogent and convincing circumstances. We are, thus, satisfied that the impugned order cannot be sustained."

From the judgment of the apex Court (supra), it is clear that if it is an application filed for cancellation of bail the petitioner ought to have filed an application for cancellation of bail before the same Court which granted bail since no appeal lies against the said order. But, as stated supra, even assuming that the present petition is filed challenging the order granting bail, I see no illegality in the orders passed for more than one reason, though the offence is one under Section 302 IPC. One fact which should be borne in mind is that the incident is an outcome of an acute faction between two groups in Kurnool District. Admittedly, A5, A6 and A7 have not participated in the commission of the offence. A6 is an old man aged about 80 years at the time of the alleged incident. All three of them are closely related to each other. A5 is the grandson of A6 and younger brother''s son of A7, while A6 is the father of A7 and grandfather of A5. The role attributed to them is that of conspiracy. LW31 was examined to prove the conspiracy. He is none other than the gunman of A7. Even as per the statement of LW31, he was standing outside the house and did not hear the conversation which took place in the said house. His statement is only to the effect that much prior to the date of incident A5 to A7 met A2 to A4. Later A1 is alleged to have taken A8 to A13 to the house of A6 where A5 to A7 were already present. The above circumstance spoken to by LW31, is alleged to have taken place in the month of February 2014. Since LW31 did not hear the conversation and as he was admittedly standing outside the house, mere meeting of the accused by itself cannot be a ground to cancel the bail as the same prima facie does not inculpate the respondents/accused in the offence.

The learned Counsel for the petitioner also relied upon the telephonic conversations which took place between A5, A6 and A7 and also an SMS sent to the telephone of LW7, threatening him with dire consequences. It is to be noted that the Xerox copy of the SMS message which has been passed on across the bar was sent by one Nagi Reddy and not by respondent No. 2. In order to connect Nagi Reddy with the crime, the learned Counsel for the petitioner relied upon a photograph, to show that Nagi Reddy was in the company of A5. The learned Counsel for the respondents/accused objected to the same stating that there is any amount of dispute with regard to the identity of Nagi Reddy and his relationship with the accused. It is true that the accused may not be having knowledge about the identity of one Nagi Reddy, but since there is a dispute as to the identity of Nagi Reddy, the same cannot form a basis either to cancel the bail or that the bail was granted on extraneous considerations. The telephonic conversation between A5 to A7 also cannot be said to be unusual as all of them are interrelated to each other. It is true that there were number of calls between these three accused, but the nature of conversation between the parties and the contents of the said conversation are not secured by the prosecution agency till date. Hence, the same cannot form a basis to cancel the bail having regard to the relationship between the accused.

Insofar as participation of A8 to A12 are concerned, none of them have actually participated in the attack on the deceased. The allegations against them is that A10 was driving the Auto and the other accused stood as guards on the road. Though they were armed with weapons did not either attack the deceased or LWs.1 and 2 who were along with the deceased at the time of the accident.

The learned Counsel for the accused 1 and 2 commented about the presence of LWs.1 to 4 at the scene by urging that they are set up witnesses. According to him, if really they were with the deceased, the 8 accused who were present at the scene would not have spared them, more so, when they have come prepared to commit the offence. It may not be proper for me to comment about the presence of LWs.1 and 2 at the scene of offence and about they seeing the incident. But, one fact which has to be noted that immediately after the incident, the residents of the locality, on hearing the commotion came out the house and saw the incident. It appears that none of them are projected as eye-witnesses to the incident. No Test Identification Parade was conducted in respect of independent witnesses who came out of the house on hearing the commotion and saw the incident.

Lastly, the learned Counsel for the petitioner submits that the conditions imposed while granting bail do not keep the accused under surveillance of the police. As seen from the record, A5 was directed to stay at Kadapa and he was directed not to enter into Kurnool District except on the dates when he has to attend the Court.

Since the surveillance of A5 in Kadapa District is not taken care of, it would be appropriate to direct A5 to report before the Station House Officer, I Town Police Station, Kadapa, twice in a week i.e., on every Sunday and Wednesday between 10.00 a.m. and 6.00 p.m. The said condition stands relaxed on the dates he has to attend the Court in Kurnool. Insofar as other accused are concerned, some conditions can be added to the existing ones, so as to keep a watch on them, which according to me would meet the ends of justice.

Hence, A1 to A4, A6, A8 to A11 are directed to furnish their proof of address like Aadhar Card or Ration Card or Voter Card and make themselves available to the police as and when required by them. Apart from that the accused shall attend the Court on every date of adjournment without fail. These are in addition to the conditions already imposed. With the above directions, all the above criminal petitions are disposed of.