Andhra Pradesh High Court - Amravati

Saladi Veera Venkata Arjuna Seetaram ... vs State Of Andhra Pradesh on 15 October, 2024

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL PETITION No.6628 of 2024

ORDER:

1. This criminal petition under section 482 of the BNSS is
filed by the petitioner/accused to grant anticipatory bail in
connection with Crime No.270 of 2023 of Indrapalem Police
Station of Kakinada District for the offences punishable under
Sections 376(2)(n), 354(c), 420, 506, 306 read with 116 of the

IPC
.

2. Heard arguments of Sri B.V.Rama Rao, the learned
counsel for petitioner and learned Assistant Public Prosecutor for
respondent/State.

3. The following facts are required to be noticed:

A lady aged 22 years lodged written information dated
19.11.2023 upon which, a FIR.No.270 of 2023 was registered for
the offences under
sections 417
,
and
read with 116 of
the
IPC
. The allegations do show that since the year 2021, she
was learning tailoring work and during that phase, acquaintance
developed between her and the accused. The accused used to
befriend her and promised to marry her and this love continued
for about 3 years. It is alleged that the accused wanted to do
business in iron scrapping and required money and in that regard,
he obtained Rs.5 lakhs cash and 8 sovereigns of gold from the
victim lady. Sometime thereafter, when she demanded to marry
her, he refused to marry her and she informed to his father and
that was not fruitful. On 19.11.2023 she intended to lodge a police
case but felt that her reputation may get damaged and she
thought of committing suicide and then she swallowed her own
silver ring. That was noticed by her father and she was admitted
in the hospital and she survived. Then she lodged the written
information with police. Investigation commenced and 10
witnesses were examined. The accused was arrested on
31.01.2024 and was produced before learned V Additional
Judicial Magistrate of the First Class, Kakinada seeking his
remand for 15 days to complete the investigation. The learned
Magistrate entertained the prayer and considered the rival
submissions and took the view that the material on record did not
make out a case for
section 306
read with 116
IPC
. What
remained was the offences under
sections 417
and
IPC and
there was compliance of
Section 41A
CrPC notice. It was in such
circumstances, it directed the release of the accused on his
personal bond for Rs.10,000/- with a direction to comply with the
conditions mentioned in
Section 41A
CrPC notice. Thereafter, he
made his appearance before the court and was directed to
appear on receipt of summons and such order was made on
19.03.2024. This is the first phase of the case.

4. During the course of investigation, the investigating officer
thought it fit to have the statement of the victim lady recorded
under
section 164
CrPC by the learned Magistrate. Accordingly,
necessary applications were filed. On 23.03.2024, the learned
Judicial Magistrate of the First Class - cum - VI Additional Civil
Judge's (Junior Divison) Court, Kakinada recorded the victim's
statement under
section 164
CrPC. Subsequently, the
investigating officer felt that the facts that were gathered so far
including the statement of the victim lady recorded by the learned
Magistrate contained material that the accused under the promise
of marriage had sexual intercourse on multiple occasions with the
victim lady and failed to marry and they do attract the offence of
rape and therefore additional penal provisions were added and
they are
sections 376(2)(n)
,
354-C
,
IPC.

5. Then, the prosecution filed a petition under
section 437(5)

CrPC seeking cancellation of bail and that was registered as
Crl.M.P.No.3140 of 2024. Notice was served on the accused. He
put in his attendance and filed a counter opposing the prayer
made in the petition. After due hearing and enquiry, by an order
dated 27.08.2024, the learned V Additional Judicial Magistrate of
the First Class, Kakinada allowed the prayer of the prosecution
and considered the rulings of the Hon'ble Supreme Court of India
and passed the following order.

"On perusal of the decision of the Hon'ble Supreme
Court as above, it is clear that when further cognizable and
non-bailable offences are added, the court can direct the
accused to be taken into custody after cancellation of his
bail. In the present case on hand, the prosecution has
altered the section of law basing on the statement of the
victim, and the
section 376 (2)(n)
of IPC is triable by the
Hon'ble Sessions Court. The accused has not surrendered
or applied for bail for newly added offences. Therefore, in
view of the above circumstances, this court is of the opinion
that the accused has to be arrested for the offences under

section 376 (2) (n)
,
354 C
and
of IPC and the Inspector
of Police, Kakinada Rural Circle, is permitted to arrest the
accused for the said offences.
In the result, this petition is allowed, the Inspector of
Police, Kakinada Rural Circle is permitted to arrest the
accused for the offences under
sections 376 (2) (n)
and
C, 506 of
IPC
."

6. It is thereafter, the accused has come up with this petition
with the prayer which reads as mentioned below"

"This Hon'ble Court may be pleased to enlarge the
petitioner/accused on bail in the event of his arrest in
Cr.No.270 of 2023 of Indrapalem Police Station of
Kakinada District, and to pass such other order or orders as
this Hon'ble Court may deem fit and proper in the
circumstances of the case."

7. Learned counsel for petitioner urges that this has never
been the case of the prosecution that this petitioner either
threatened the witnesses or tampered with the evidence or
interfered with the investigation. That there is collusion between
the victim lady and local political parties and that resulted in
addition of penal provisions. The allegations do not indicate any
prima facie case against the petitioner. The petitioner is
permanent resident of Atchutapuratrayam Village and would
cooperate with the police for all purposes of investigation and will
always be available for that purpose. That the contentions raised
by the petitioner were not properly considered by the court below.
It is for these reasons, he seeks pre arrest bail.

8. Learned APP representing the State stoutly objected
stating that the petition is not maintainable either on facts or law
and the reasoned order of the learned Magistrate was never
challenged by recourse of any appropriate remedy and without
doing so, the petitioner is not entitled for seeking bail in
anticipation and requested the court to dismiss the petition.

9. In the light of the facts narrated above and the rival
submissions the following points fall for consideration:

1. In a criminal case where an accused has been arrested
and bailed out for certain non bailable offences and
was subsequently found to have been involved with
more serious offences in the same case whether he is
entitled to apply for anticipatory bail?

2. Whether anticipatory bail application can be
maintained without assailing the order of the court
directing the arrest of accused?

POINT Nos.1 and 2: -

10. As could be noticed from the record, by the time the
petitioner was arrested on 31.01.2024, there were no allegations
of sexual atrocity and he was produced before the learned
Magistrate for the offences under
sections 417
,
and
read
with 116
IPC
. Learned Magistrate considered the material on
record and duly released him on bail by obtaining a personal
bond. Investigation continued and the victim lady disclosed how
she was ravished on multiple occasions under the guise of
promise of marriage. Whether those allegations are true and
believable or whether they are false allegations are matters for
investigation and matters for trial. The fact remains now that the
investigating officer found from the material on record that for the
facts offences under
sections 376(2)(n)
,
354 C
and
IPC do
attract. What should happen under law in such circumstances
was dealt with by the Hon'ble Supreme Court of India in
Hamida
V. Rashid1
.

The principles laid down therein and other rulings
were elaborately considered by the Hon'ble supreme court of
India in
Pradeep Ram V. State of Jharkhand2
. Their Lordships
stated that where after grant of bail to an accused, further
cognizable and non bailable offences are added, the following
principles apply.

1. The accused can surrender and apply for bail for newly
added cognizable and non bailable offences. In the event of
refusal of bail, the accused can certainly be arrested.

2. The investigating agency can seek order from the court
under
section 437(5)
or 439(2) of the
CrPC
for arrest of the
accused and his custody.

3. The court, in exercise of power under
section 437(5)
and

439(2)
of the CrPC, can direct for taking into custody, the
accused who was already granted bail after cancellation of
his bail. The court in exercise of power under
section
437(5)
as well as 439(2)
CrPC
can direct the person who
has already been granted bail to be arrested and commit
him into custody on addition of non bailable offences which
(2008) 1 SCC 474
(2019) 17 SCC 356
may not be necessary always with order of cancellation of
earlier bail.

4. In a case where an accused has already been granted bail,
the investigating authority on addition of an offense or
offences may not proceed to arrest the accused, for
arresting the accused on such addition of offence or
offences, it needs to obtain order to arrest the accused
from the court which had granted bail.

11. In the present case, Crl.M.P.No.3140 of 2024 was filed by
the prosecution under
section 437(5)
CrPC with the following
prayer:

"Petitioner/police humbly prays the Hon'ble court
may be pleased to cancel the self-bond/ bail which was
executed by the respondent/accused and permit to arrest
the accused for the purpose of remand of the accused for
judicial custody since he is involved in offence of rape
which is grave in nature, else great prejudice will be caused
to the de facto complaint in this case.

After due hearing on both sides by an order dated
27.08.2024, the learned Magistrate stated that
section 376(2)(n)

of IPC is triable exclusively by the Hon'ble Court of sessions and
that the accused despite adding the new penal provisions did not
choose to surrender and did not choose to apply for bail for the
newly added penal provisions. In view of those circumstances, it
directed the accused to be arrested for the offences under

sections 376(2)(n)
,
354-C
and
IPC. Thus, it is at the direction
of the court, the prosecution intended to arrest the accused.
Thus, there is warrant/ justification for the police to arrest. The
ratio of the
Pradeep Ram
's case permitted several alternatives
and the accused did not pursue any of those alternatives. The
offences alleged against him are very grave. In such
circumstances, pre-arrest bail cannot be granted.

12. Seeing from the facts of the case it has to be stated that the
accused is a person who was released on regular bail for some of
the penal provisions and he now seeks anticipatory bail for the
newly added penal provisions. It is difficult to comprehend that in
the same crime, one could avail a regular bail in part and
anticipatory bail in part. At any rate taking a case as a case when
once the accused was arrested in the case, his right to seek pre
arrest bail ceases.

13. The contents of the present petition and the submissions of
learned counsel for petitioner have not addressed any illegality in
the order of the learned Magistrate. Without challenging the order
of the learned Magistrate by way of revision or other appropriate
petition, the prayer of the petitioner for pre arrest bail is not
maintainable. Hence all the points are answered against the
petitioner.

14. In the result, this petition is dismissed. Respondent/ state is
directed to proceed further in accordance with the directions
given by the learned V Additional Judicial Magistrate of the First
Class, Kakinada in Crl.M.P.No.3140 of 2024 in Cr.No.270 of 2023
dated 27.08.2024.

________________________
Dr. V.R.K.KRUPA SAGAR, J
Date:15.10.2024 Dvs
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL PETITION No.6628 of 2024

Date: 15.10.2024

Dvs