Dismissed

Tatta Srinu v. the State of Andhra Pradesh

Andhra Pradesh HC18 Mar 2021CRLP/117/2021

Case brief

AI extract

What is this about?

A criminal petition against bail granted by a Judicial Magistrate in an SC/ST atrocities case was dismissed. The Court held that the Magistrate was right to refuse remand and grant bail to the accused, challenging the petitioner's claim that only Special Courts could exercise such power. The petition was ultimately dismissed as the impugned order was upheld.

What did the court decide?

Criminal Petition dismissed; Magistrate's order upholding bail granted to accused and liberty given after bond execution.

Tatta Srinu Vs the State of Andhra… — Pension and Retirement Benefits | Andhra Pradesh HC (2021)

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THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

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CRIMINAL PETITION No.117 of 2021

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ORDER:-

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This Criminal Petition is filed under Section 439(2) read with 482 of the Code of Criminal Procedure, 1973 seeking to set aside the order dated 14.12.2020 passed on the remand copy by the Additional Judicial First Class Magistrate, Yalamanchili, Visakhapatnam District in F.I.R.No.540 of 2020 on the file of Atchuthapuram Police Station, Visakhapatnam District, granting bail to respondent Nos.2 and 3/accused Nos.1 and 2 and to direct respondent No.1 to arrest respondent Nos.2 and 3.

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The case of the petitioner who is the complainant is that he has lodged a report against respondent Nos.2 and 3 on 31.10.2020 stating that he went to Tahsildar office for attending retirement function and when the petitioner and other VRAs were working for the function, at about 14:25 hours, himself, VRA Ravi Kumar and VRO Venkata Rao noticed that some persons were quarreling with the Tahsildar and when they supported the Tahsildar, the accused persons abused the petitioner as “Malavedava” and scolded them. Basing on the report given by the petitioner, the Police Atchuthapuram registered crime No.540 of 2020 for the offences punishable under Sections 3(1)(r)(s) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 (for short the ‘SC ST (POA) Act’).

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The further case of the petitioner is that the Police arrested the accused on 14.12.2020 and produced them before the Additional Judicial First Class Magistrate, Yalamanchili requesting the Court to grant remand for a period of 15 days, but the Magistrate has granted bail by endorsing the same on the remand papers without having express jurisdiction for granting such bail. It is observed by the Magistrate that in view of the decision of the Hon’ble Apex Court in Arnesh Kumar vs. State of Bihar¹ , the Police did not follow the guidelines of the Hon’ble Apex Court and failed to follow the procedure laid down under Section 41-A Cr.P.C. as the punishment for the offences is extend up to five years. Further, the Police failed to produce caste certificates of the complainant, A1 and A2 even though the case was registered on 31.10.2020. The reasons assigned by the investigating officer are not satisfactory. A1 and A2 are residents of Achyutapuram within the jurisdiction of the Court as such A1 and A2 are set at liberty on each of them executing personal bond for Rs.20,000/-. The Magistrate further directed A1 and A2 to furnish two sureties for the likesum each on or before 21.12.2020. Aggrieved by the same, the petitioner is before this Court.

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Heard Sri Penumaka Venkata Rao, learned counsel for the petitioner, learned Additional Public Prosecutor for respondent No.1-state and learned counsel for respondent Nos.2 and 3.

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1 2014 (8) SCC 273

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Learned counsel for the petitioner submits that Magistrate does not have exclusive jurisdiction to pass exotic order of bail except remanding the accused for a period not exceeding fifteen days. He submits that for trial of offences under SC ST Act the XI Additional District and Sessions Court at Visakhapatnam is designated Court for trial of the offences. Learned counsel further submits that it is settled principle of law that when there is exclusively special Court for trial of such offences, neither the Magistrate nor any other Sessions Court has jurisdiction to grant bail or any other order except to pass order of remand of accused for a period not exceeding fifteen days and in any event if such order is passed it is prerogative of the victim to file for cancellation of bail. Learned counsel for the petitioner further submits that when there is exclusive special Court it can only exercise exclusive jurisdiction to take cognizance of any offence under the Act or try the case and such Courts will have power to remand the accused by exercising power under sub-Section 2 of Section 267. However, such power shall not exclude power of the judicial Magistrate from passing order of remand of the accused for a period not exceeding fifteen days. In support of his contention, the learned counsel for the petitioner relied on

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Smt. Sunitha Gandharva vs. State of Madhya Pradesh and

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another² wherein it was held:

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“38. So far as, relevant provisions of Atrocities Act, 1989 are concerned, Section 2(bd) defines Exclusive Special

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2 M.Cr.Case No.22615 of 2020

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Court” and Section 2(d) defines “Special Court” means a Court of Session specified as a Special Court in Section 14. Similarly, Section 14 deals with Special Court and Exclusive Special Court and Section 14-A deals with appeals.”

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He also relied upon Registrar Judicial vs. Krishnaswami

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Naidu and another³ wherein it was held as under:

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35. Now, turning to the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment) Act, 2015 [Act 1 of 2016], similar question has arisen as to whether the notifications specifying Additional Sessions Judges as Special Courts under the said Act are valid or not. To resolve this issue, let us first look into the definition of the term Special Court as defined in Section 2(d) of the Act, which reads as follows:

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Special Court means a Court of Sessions specified as a Special Court in Section 14.

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Section 14 of the Act, before the amendment Act of 2015, stood as follows:

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Special Court.- For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act.

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3 Reference case No.1 of 2017

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The proviso to Sub Section (1) Section 14 of the Act states that where less number of cases under the Act is recorded, the State Government shall with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify a Court of Sessions to be a Special Court to try the offences under this Act. If the proviso is read in conjunction with sub Section (1) of Section 14, it could be understood that an exclusive Special Court shall also be presided over by a Sessions Judge or an Additional Sessions Judge to be appointed by the High Court. The exclusive Special Court as well as the Special Court, though are Courts of Session, shall have power to take cognizance of offences under this Act directly without there being any order of committal made by a Magistrate. This is as per the second proviso to Sub Section (1) of Section 14 of the Act. Thus, the exclusive Special Court as well as the Special Court shall exercise original jurisdiction exclusively to take cognizance of any offence under the Act and try the case not being hindered by Section 193 of the Code of Criminal Procedure. Such Courts shall have power to remand the accused by exercising the power under sub Section (2) of Section 167 of the Code of Criminal Procedure. Such power shall not, however, exclude the power of a Judicial Magistrate from passing an initial order of remand of an accused for a period not exceeding 15 days.

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So far as the Special Courts that have been already notified under Section 14 of the Act, as it stood unamended, the said Special Courts shall be construed to be the Special Courts notified under first proviso to sub section (1) of Section 14 of the Act as amended. The said Special Courts, were not originally empowered to take cognizance of any offence under the SC & ST

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Act directly as the said Courts were hindered by Section 193 of the Code of Criminal Procedure.”

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On the other hand learned counsel appearing for respondent Nos.2 and 3/accused submits that when the Magistrate is not convinced with the remand report submitted by the Police it is not for the Magistrate to mechanically order the remand of the accused and he further submits that as rightly observed by the Court below while authorizing the remand the Police were suggested to follow the guidelines and the procedure contemplated under 41-A Cr.P.C. In support of his contention he placed reliance on the judgment of this Court in Guddanti Narasimha Rao vs. State of Andhra Pradesh⁴ wherein it was held that:

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“5. It can be understood from Section 209 code of Criminal Procedure that when the Court directly issues summons to the accused to secure his attendance and in obedience thereto, the accused attends before the magistrate, the magistrate while committing case to the Court of Session can bind him over to the Sessions Court on his executing a bond, as provided under Section 441 Code of Criminal Procedure obtaining bail is not a requirement as per Section 209 Code of Criminal Procedure. Further, there is no provision under prevention of atrocities act for granting anticipatory bail.

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From the language of Section 209 Criminal Procedure, it does not appear that at the time of

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4 2011 (1) ALT Crl. AP 16

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committing the case to the Court of Session, he must be on bail by the Sessions Court.

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There is no requirement in law that in each and every case triable by the Court of Session the accused shall be arrested and released on bail. When only summons were issued to the accused to secure his attendance after the charge sheet is filed in a case triable by Court of Session the accused shall not be compelled to approach the Sessions Court/Special Court and to obtain bail. In every case triable by Court of Session unless the accused is arrested and is in judicial custody, the question of his obtaining bail from the Sessions Court does not enough while committing the case it is enough not the part of the committing Magistrate to bind over the accused with or without sureties undertaking to appear before the Sessions Court till the conclusion of the trial.

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8. In Free Legal Aid Committee, Jamshedpur v. State of

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Bihar⁵ wherein it was held as under:

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“… in cases triable by the Court of Session, the practice followed is that when an accused is released on bail by the Magistrate, the bail is granted to him only during the pendency of the inquiry before the Magistrate, with the, result that when the case is committed to the Court of Session, he is rearrested and brought before the Court of Session where he has to apply once again for fresh bail. This causes considerable

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5AIR 1982 SC 1463

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inconvenience to the accused without any corresponding advantage so far as the administration of criminal justice is concerned. This situation can however easily be avoided because there is a provision in Section 441 Subsection (3) of the Cr.P.C. under which bail can be granted to an accused so as to bind him to appear before the Court of Session, in which event, on committal, he would not have to be re-arrested and brought before the Court of Session. It is also clear from Section 209, Clause (b) of the Cr.P.C. that the Magistrate has discretion to release the accused on bail "during and until completion of trial" even in cases where the offence is triable by the Court of Session. We, therefore, feel that it would avoid hardship to an accused if the Magistrate, while releasing the accused on bail, requires execution of a bond with or without surety, as the case may be, binding the accused not only to appear as and when required before him but also to appear when called upon in the Court of Session.”

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9. Learned counsel for the accused submits that the magistrate had passed a reasoned order and the same does not require any interference of this Court.

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The whole thrust of argument of the learned counsel for the petitioner is that the offences alleged against the petitioner are under SC ST (POA) Act for which there is a designated Court. When such special courts are constituted neither the Magistrate nor the Sessions Judge has power to pass any other order except passing an order remand for a period not exceeding fifteen days. When the accused is presented before the

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Magistrate, the Magistrate is not expected to mechanically remand the accused but after being satisfied that the Police have followed the mandatory procedure and if it is a case of remand the Magistrate will pass an order of remand. Whereas in this case the learned Judge has observed that the Police failed to follow the procedure contemplated under Section 41-A Cr.P.C. which is mandatory in offences where the offences are punishable with imprisonment up to seven years. Further the Hon’ble Apex Court has laid down the guidelines to be followed by the Police Officer as well as the Magistrate while arresting and remanding the accused. It is also observed by the Judge that when the complaint is under the SC ST (POA) Act, Police failed to produce the caste certificate of the complainant even though the case was registered on 31.10.2020 and the reasons assigned by the Police Officer were not satisfactory. In this case the crime was registered on 31.10.2020 and the remand report was filed on 14.12.2020 even by that time the caste certificate of the accused was not obtained by the Police which is a crucial one for attracting the alleged offence under the SC ST (POA) Act. In those circumstances the Magistrate has set the petitioner at liberty on executing a personal bond for Rs.20,000/-. Further A1 and A2 were directed to furnish two sureties for the like sum each on or before 21.12.2020.

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This Court is not able to appreciate the contention of the petitioner that except the Special Court the Magistrate has no power to grant bail to the accused. Remanding the accused is a

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solemn duty by which act the person’s right to liberty is curtailed. The learned Magistrate basing on the material available before it has come to the conclusion that it is not the case for remand as certain conditions were not fulfilled. When the remand is refused there is no other option for the Police but to set them at liberty. The learned Magistrate by releasing the accused on furnishing the bail bonds has bound over the accused.

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In view of the above discussion this Court is of the considered opinion that the Magistrate was perfectly right in passing the impugned order and hence, the petition is liable to be dismissed.

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