HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.6989 and 7082 OF 2010 Dated : 28.10.2010. Between : Kona Sasidhar & another … Petitioners a n d M.Siva Subba Rao & others … Respondents HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION Nos.6989 and 7082 OF 2010 COMMON ORDER: Since the relief sought for in both the criminal petitions is one and same, both are taken up together and disposed of by this common order. Criminal Petition No.6989 of 2010 is filed by the de facto complainant and Criminal Petition No.7082 of 2010 is filed by the Prosecution. These Criminal Petitions under Section 439 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) are filed by the respective petitioners seeking to cancel the bail granted to respondents 1 and 2 by the Judge, Family Court-cum-Additional District & Sessions Judge, (FAC) Special Judge, SC & ST Court, Rajahmundry, in Crl.M.P.No.239 of 2010 in Crime Nos.196 and 197 of 2010 of III Town (Law & Order) Police Station, Rajahmundry. The allegations against the accused in crime No.196 of 2010 are that in a meeting held in the chamber of Sub-Collector, Rajahmundry, on 08.07.2010 at about 1.00 p.m. to discuss the land acquisition matters pertaining to establishment of Adikavi Nannayya University at Velugubanda village of Rajanagaram Mandal, the accused persons abused the de facto complainant, Joint Collector, in the name of his caste. Hence, the complaint. Basing on the said complaint dated 08.07.2010, Rajahmundry III Town Police registered a case in Crime No.196 of 2010 on 08.07.2010 for the offence punishable under Section 506 IPC and Sections 3 (1) (x) of SCs & STs (POA) Act (for short ‘the Act’). Further, on 09.07.2010 Police arrested the accused and remanded them to judicial custody. Further, on the same day, the learned Special Judge by impugned order granted bail to the accused. Learned counsel for the de facto complainant submitted the following contentions in his support: 1) the Court which granted bail to the accused-respondents 1 and 2 has no jurisdiction in view of Section 14 of the Act, since the said Court is not constituted under the provisions of Section 14 of the Act, 2) the learned Special Judge granted bail to the accused only for the reasons that A.1 is the fourth generation advocate and Bar Council member, which cannot be the grounds to grant bail, 3) learned Special Judge granted bail without giving proper opportunity to the Prosecution, 4) the learned Special Judge disposed of the bail application on the same day on war footing basis, 5) even though the bail application was filed by the accused seeking release in crime No.196 of 2010, the learned Sessions Judge granted bail in two crimes i.e. crime Nos.196 and 197 of 2010, 6) there is no reason as to why bail was granted to the accused when he was not remanded in crime No.197 of 2010, 7) the Public Prosecutor, who opposed the bail application, is not a Public Prosecutor as per the provisions contemplated under SCs & STs (POA) Act. Thus, he prayed to cancel the bail granted to accused- respondents 1 and 2. Learned counsel for the accused-respondents 1 and 2 submitted that there is no illegality in granting bail to the accused on the same day. The reasons adduced by the Sessions Judge in granting bail are not the grounds mentioned by the petitioners herein. It is also submitted that the learned Judge observed the same in his bail order to be the contentions of the accused and no observations were made by the Sessions Judge to the effect that the bail is granted to the accused considering the fact that A.1 is the 4th generation advocate and a Bar council member. He also submitted that at the time of grant of bail the fact that the other crime is also connected with the crime, in which bail application is filed, was brought to the notice of the learned Sessions Judge and the documentary evidence also shows that crime No.197 of 2010 was intended to be clubbed with crime No.196 of 2010 in which bail was granted. Hence, the learned Judge has granted bail in crime No.197 of 2010 also, which cannot be termed erroneous. Further, the complainant being the Joint Collector, influencing the investigating officer and the same is evident from the set of papers filed by the complainant, which contains the extracts of the case diary, to which the complainant had no access. Thus, the complainant wants to take revenge against the accused by using his influence as Joint Collector. Finally, he prayed to dismiss the Criminal Petitions. Now the point for consideration before this Court is ‘whether the bail granted to the accused-respondents 1 and 2 are liable to be set aside?” As far as the first contention of the learned counsel for the petitioners is concerned, Section 14 of the Act enables the State Government to constitute a Court with the consultation of the High Court for the purpose of trying the offences under the Act. On the question of remand and grant of bail, this Court is of the view that it is a pre-cognizance stage. The Court constituted under Section 14 of the Act to try the offences will have the power to take cognizance of the offence and to proceed with the case. Prior to taking cognizance, the other Courts, which have the power to remand, are also empowered to grant bail. Hence, the question that the Court, which granted bail, is not having the power to grant bail cannot be accepted. The second contention of the petitioner is that one of the reasons assigned for grant of bail by the learned Sessions Judge is that the petitioner hails from a family of lawyers being the fourth generation lawyer and had great reputation in the lawyer community. On a perusal of the impugned order, this Court is able to see that the learned Sessions Judge observed the above said ground as the contention advanced by the petitioner’s counsel therein. But, the learned Sessions Judge nowhere in the impugned order has taken into consideration the said contention as a ground for grant of bail. The learned counsel further submitted that the learned Sessions Judge in the impugned has observed that “it appears there are no abusive words alleged to have used by the petitioner touching the caste and there are no threatening with dire consequences” and the said observation would cause prejudice to the complainant that too when the matter is under investigation. This Court is also of the view that while disposing of the bail application, there is no necessity to express any specific opinion about the merits of the case. Hence, the above said observation is hereby expunged. Further, the learned counsel for the complainant submitted that when the accused moved an application for grant of bail in Crime No.196 of 2010, the learned Sessions Judge also granted bail to the accused in crime No.197 of 2010. Material on record reveals that basing on the report given by the Revenue Divisional Officer complaining the very same incident, the Station House Officer, III Town (L&O) Police Station, Rajahmundry, registered Crime No.197 of 2010 for the offence punishable under Sections 354 and 506 IPC. The learned Sessions Judge elaborately discussed about crime No.196 of 2010 and also the existence of crime No.197 of 2010 on perusal of the case diary. But, this Court is of the view that when the accused are not in remand in Crime No.197 of 2010 and when there is no bail application pending before him for adjudication in Crime No.197 of 2010, the learned Sessions Judge could not have invoked the jurisdiction under Section 439 Cr.P.C. The respondents’ counsel, per contra, submitted that the complainant being the Joint Collector influencing the respondent- Police and tried to abuse the process of law, for which, the learned counsel referred the documents filed by the complainant along with the petition and also the copy of communication between the Government and the Public Prosecutor, who opposed the bail application. At this stage, this Court is not inclined to probe into those matters. The main grievance of the learned counsel for the complainant is the manner in which the bail was granted to the accused. It is submitted that the learned Sessions Judge should not have granted bail on the same day of remand. This Court is of the view that there is no bar for grant of bail to a person on the same day of remand. What is required while invoking the provision of Section 439 Cr.P.C. is that there should be a notice and an opportunity to the respondent-Police to make their submission. In the present case, the records show that an opportunity has been given to the Prosecution and the Public Prosecutor also submitted his objection. It is not necessary that the Public Prosecutor should raise his objection by way of filing a counter. Further, the learned counsel for the complainant submitted that A.1 is trying to interfere with the investigation and he is not complying the conditions also. Rebutting the same, the learned counsel for the accused submitted that A.1 informed the respondent-Police that he is unable to appear. Learned counsel for the accused also submitted that the moment, the accused came to know the registration of F.I.R. against them, immediately they surrendered before the Police and subjected themselves to process of law, which shows their bonafides. The learned counsel for the complainant has not urged before this Court as to how the impugned order caused prejudice to the complainant. The Criminal Petition filed by the Prosecution is also silent on the said aspect. As stated above, in both the petitions, the grievance of the petitioners is the manner in which the learned Sessions Judge granted bail to the accused. This Court already expressed its view on each and every contention raised by the respective counsel. This Court is of the view that either the counsel for the complainant or the Public Prosecutor established their case to set aside the impugned order as far as grant of bail to the accused in Crime No.196 of 2010 is concerned. However, concerning the grant of bail in Crime No.197 of 2010 is concerned, it is erroneous in law and the learned Sessions Judge should not have passed an order without there being any petition by the accused for grant of bail. Hence, the order of grant of bail in Crime No.197 of 2010 is not legally valid and the same is liable to be set aside. However, if crime No.197 of 2010 is investigated separately by the Police without clubbing with crime No.196 of 2010, the respondents-accused are at liberty to approach the concern Court for appropriate remedy. With above observations, the Criminal Petitions are disposed of. _________________________ JUSTICE RAJA ELANGO Dated : 28.10.2010 sur