Andhra Pradesh HC Refuses Pre-Arrest Bail To One Accused Of "Monitoring Through WhatsApp" Mob Agitation Over Renaming District After Ambedkar

It was alleged that on a call given by the Konaseema Sadhana Committee, a huge number of people gathered to submit objections to the decision of renaming the district, in violation of Section 144 of the CrPC and Section 30 of the Police Act. They were joined by others and they eventually marched towards the collectorate. On their way, it is alleged that the mob pelted stones at the police who were discharging their duties and burnt BVC college bus which was being used as a transport vehicle for the police. The mob also pelted stones at the police at the collectorate office and some police officers sustained injuries. Glasses at the collectorate office and Ambedkar Bhavan were damaged. Later, the mob proceeded to the Red Bridge, intercepted two RTC buses, damaged them and set them to fire. The mob further moved towards the house of the MLA and pelted stones, damaging some glasses. When the cousin of the MLA tried to intervene, the mob poured petrol on him. He managed to escape. The mob entered the house of the MLA, set fire to the motorcycles, the furniture and the house.

The State submitted that the Petitioner, being the leader, gathered his followers and monitored the entire mob through WhatsApp messages. It was argued that a prima facie case was established against the Petitioner through statements of the injured, confessions of the arrested accused and footage recorded through the incident, making him unentitled for a pre-arrest bail.

The counsel for the Petitioner claimed that the Petitioner was innocent and never participated in the offences laid against him. He argued that the incident took place after the ruling party aggravated the agitation and caused nuisance to tarnish the image of the other political party, as was reported by the media and stated by victims. He pointed out that the Petitioner's role was not detailed in any of the FIRs, which only mention his name. He submitted that, except using the word 'mob', no specific overt acts were attributed against any of the accused persons, including the Petitioner. When there are no specific over acts attributed against a person, bail cannot be denied, he argued.

He also argued that the word 'unlawful assembly' is not applicable to the mob. As per Section 141 of the IPC, a group consisting of five or more persons with a common object of committing an offence will be designated as an unlawful assembly. It was submitted that in the present case, FIRs do not disclose any such common object or intention on part of the mob and when there is no such common intention, all the persons who were present at the time of the alleged incident cannot be arrayed as accused. This makes Sections 146 and 147 of the IPC inapplicable to the case.

It was also argued that Section 307 of the IPC would not be attracted against the Petitioner. The act of setting buses on fire knowing that the drivers were inside could not be attributed to the Petitioner unless the prosecution specifically ascribe his role. The counsel for the Petitioner claimed that the drivers were not inside the bus and the buses were open when fire was set to them, as is evident from the videos. He submitted that it was not the intention of the mob to kill drivers, and that some miscreants joined the mob and destroyed public property. Therefore, at the most, offences under the Prevention of Damage to Public Property Act are to be attracted.

The Petitioner's counsel alleged that Section 307 of IPC was only added to the charges to deprive him from a bail, since all other offences are bailable. He further submitted that no weapons were seized from the 120 people arrested so far. He also pointed out that the police have not filed any petition seeking custodial interrogation. He further argued that Section 39 of the CrPC, dealing with the duty of the public to give information relating to commission of certain offences to the nearest magistrate or police officer, would not apply in the Petitioner's case, as he did not have knowledge about the commission of the offence. He submitted that the police were discharging their duties and the time of the alleged commission of the offence, so, even if it is assumed that the Petitioner was present at the time, he needn't intimate the police.

The Additional Public Prosecutor, in return, submitted that the evidence collected specially showed that the Petitioner, being a leader, played a major role in provoking the mob. He monitored the mob through WhatsApp. A prima facie case is made out against the petitioner through statements of the injured, confessions of the arrested and video footage from the day. He argued that at the time of setting fire to the buses, the mob was aware that drivers were inside, making it an attempt to murder and attracting Section 307. He argued that it might not have been the intention of the mob to kill the MLA, but they were aware of his presence in the house and despite this knowledge, they set fire to the furniture and the house, again, attracting Section 307.

He also submitted that apart from the confession statements of the co-accused, there are photographs evincing the participation of the petitioner in the offences. He submitted that the investigation was in progress and the Petitioner's presence was required for custodial interrogation to secure call data of other accused persons, to identify other persons who participated in the offence and to collect WhatsApp data. He stated that after the incident, the Petitioner directed WhatsApp group members to delete the instructions sent by him, which amounts to destruction of evidence. Should the Petitioner be discharged on bail, there is possibility that he would tamper with the evidence and influence the witnesses. He also pointed out the possibility of a conflict between the schedule community and the OC community.

The Court noted that there must be an unlawful assembly as defined under Section 141 of IPC for attracting offences under Sections 146 and 147. The Court found nothing forthcoming from the record to show that all people in the mob shared a common intention of committing an offence. The Court noted that although the mob consisted of over 1,000 people, no complaint indicated a common intention of committing an offence punishable under Section 307 of the IPC. The mob gathered to submit their representations at the collectorate office but not with an intention to commit an offence and the mob was not armed with weapons. Moreover, the Court found that no overt acts had been attributed to the Petitioner.

The Court noted that the name of the petitioner was mentioned in all the complaints. Witnesses also specifically mentioned his presence. In view of the facts and circumstances of the case and since the name of the Petitioner reflected in the complaint as well as the statements of list of witnesses recorded under Section 161 of the CrPC, the Court found that the Petitioner is not entitled to pre-arrest bail and that his custodial interrogation is necessary.

In another case, the High Court heard a bail application from a person accused of similar offences allegedly committed during the same mob rally. The Petitioner submitted that he had not participated in the agitation and that he was not present when the offence took place. The Petitioner had been in remand since 30.05.2022 although the Deputy Superintendent of Police did not seek his remand. It was argued that the Petitioner was implicated in the case solely based on an extrajudicial confession made by another accused person.

Special Assistant Public Prosecutor opposed the Criminal Petition on the ground that the petitioner and others were identified and arrayed in the Crime based on the photographs taken by the Police at the scene of offence. He also filed a Memo stating that Section 15 A(3) of the SC & the ST (PoA) Act had been complied with.

Pointing out that the Petitioner has been in judicial custody for more than a month, the Court noted that it is not the case of the prosecution that the Petitioner's presence is required in any custodial interrogation. Since the material part of the investigation process had been completed, retaining the Petitioner in remand would be against Article 21 of the Constitution of India, the Court further noted. Petitioner's name was not mentioned in the complaint and no specific attribution was made against him. The Petitioner had been arrested only on the basis of an extra judicial confession. The Court referred to the case of Bullu Das Vs. State of Bihar, in which it was held that a confessional statement was inadmissible as it was made by an accused before a police officer, after the investigation had started.

Considering the facts and circumstances of the case, the Court allowed the bail application.

Citation: 2022 LiveLaw (AP) 86

Click Here To Read/Download Order 1