HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.3753 of 2009 Dated : 25.08.2009 Between : Vangaveeti Radha Krishna & 3 others ….. Petitioners a n d The State of A.P. & another ….. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.3753 of 2009 ORDER: Heard Sri Y.V.Srinivasan, learned counsel for the petitioners, Sri Y.Subramanyam, learned counsel for the second respondent, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor, for the first respondent. Crime No.403 of 2009 of Nunna Police Station, Vijayawada, was registered against four petitioners and two unnamed persons on the complaint of the second respondent stating that he contested as an independent candidate in the recent assembly elections from Vijayawada central constituency and got 1284 votes. The first petitioner, who contested as a candidate of Praja Rajyam party, lost the election by 847 votes and believing that he lost the election because of the contest by the second respondent, the petitioners were claimed to have threatened the second respondent and the petitioners were also claimed to have telephoned to one P.Hari Sastry with the same threat. Subsequently, the second respondent claims that on 01.06.2009 at about 7-00 a.m. two unknown persons attacked him near Aarja Mansion at Vijayawada and that one of them tried to beat on his head with an iron rod and he claimed to have been further beaten on the hands and the body and when one Anjaneya Prasad reached the place, those two persons were claimed to have left the scene stating that they will not leave him and will kill him and that Radha babu was defeated only due to second respondent. Therefore, the second respondent sought for taking action against the persons who attempted to kill him and also the persons who made those two persons attempt to kill him. The crime was registered under Sections 341 and 307 of the Indian Penal Code read with Section 34 of the Indian Penal Code. Section 34 of the Indian Penal Code refers to acts done by several persons in furtherance of the common intention of all which make each of such persons liable for the acts in the same manner as if they were done by him alone. The essence of Section 34 of the Indian Penal Code is that the person must be physically present at the time of actual commission of the crime to make such person liable jointly and constructively for the crime committed in furtherance of the common intention of all of them. In the present case, the petitioners were not even remotely alleged to be present at the scene of offence at the time of the alleged incident when two unknown persons attacked the second respondent. The acts committed by them have been alleged to amount to offences punishable under Sections 341 and 307 of the Indian Penal Code. If so, any joint and constructive liability does not appear to be possibly attributable to any of the petitioners with reference to Section 34 of the India Penal Code. The allegation in the written report, leading to the registration of the crime, by the second respondent appears ex facie to allege either abetment by the petitioners to the acts committed by those two unknown persons or conspiracy by the petitioners involving those two unknown persons also in respect of the attack on the second respondent. As of now, there is no material on record concerning the complicity of the petitioners either as abettors with reference to Section 109 of the Indian Penal Code or as conspirators with reference to Section 120-B of the Indian Penal Code. If the further investigation into the crime were to ex facie disclose any material which can implicate the petitioners in the crime either as abettors or as conspirators, it is always open to the investigating agency to proceed further against them in accordance with the procedure prescribed by the Code of Criminal Procedure in respect of any such liability, but as of now, naming them as accused with reference to Section 34 of the Indian Penal Code does not appear to be legally sustainable. Therefore, the registration of crime No.403 of 2009 of Nunna Police Staiton, Vijayawada, against the petitioners with reference to Section 34 of the Indian Penal Code read with Sections 341 and 307 of the Indian Penal Code is quashed, but this order shall not preclude the statutory investigating agency from investigating into any complicity of any or all of the petitioners in the crime under any other provisions of law and taking further action against any or all of the petitioners in case of the investigation disclosing any such complicity in such offences. The criminal petition is ordered accordingly. ______________________ G.BHAVANI PRASAD, J 25th August, 2009 SUR