*HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO

+CRIMINAL PETITION NO.3775 OF 2024

%26.06.2024

#Between:

Pinnelli Ramakrishna Reddy,

S/o P. Venkateswara Reddy,

Aged about 54 years,

Occ: Member of Legislative Assembly,

Resident of Macherla, Palnadu District - 522426.

…… Petitioner / Accused No.1

$And:

State of Andhra Pradesh, rep., by its Public

Prosecutor, High Court at Hyderabad.

….Respondent/Complainant

!Counsel for the Petitioner : Sri T. Niranjan Reddy, learned Senior Counsel

: Sri Rama Lakshmana Reddy Sanepalli, learned Counsel

^Counsel for the Respondent : Sri N. Ashwani Kumar, learned Special Counsel

<Gist:

>Head Note:

? Cases referred:

1. (2011) 1 SCC 694

2. 2015 SAR (Criminal) 156

3. (2020) 5 S.C.C. 1

4. (2014) 8 SCC 273

5. (2023) 8 SCC 632

6. (2021) 10 SCC 773

7. 2012(3) MPLJ

8. 2006 SCC OnLine Bom 82

9. 2024 S.C.C. OnLine SC 274

This Court made the following:

2

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

***

CRIMINAL PETITION NO.3775 OF 2024

Between:

Pinnelli Ramakrishna Reddy,

S/o P. Venkateswara Reddy,

Aged about 54 years,

Occ: Member of Legislative Assembly,

Resident of Macherla, Palnadu District - 522426.

…… Petitioner / Accused No.1

$And:

State of Andhra Pradesh, rep., by its Public

Prosecutor, High Court at Hyderabad.

….Respondent/Complainant

DATE OF JUDGMENT PRONOUNCED: 26.06.2024

SUBMITTED FOR APPROVAL:

HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO

1. Whether Reporters of Local newspapers may

be allowed to see the Judgments? Yes/No

2. Whether the copies of order may be marked

to Law Reporters/Journals? Yes/No

3. Whether Your Lordships wish to see the fair

copy of the order? Yes/No

_____________________________

JUSTICE T.MALLIKARJUNA RAO

APHC010243192024

IN THE HIGH COURT OF ANDHRA PRADESH

WEDNESDAY, THE TWENTY SIXTH DAY OF JUNE

TWO THOUSAND AND TWENTY FOUR

THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO

CRIMINAL PETITION NO: 3775/2024

Between:

Pinnelli Ramakrishna Reddy,

The State Of Andhra Pradesh

Counsel for the Petitioner/accused:

1. RAMALAKSHMANA REDDY SANEPALLI

Counsel for the Respondent/complainant:

1. N ASHWANI KUMAR

2. PUBLIC PROSECUTOR (AP)

The Court made the following ORDER:

1. The petitioner/A. 1 has filed the

Code of Criminal Procedure, 1973, seek

No.48 of 2024, registered at the

District.

2. A case has been registered against the Petitioner and others for the

offences punishable under Section 143, 147, 448, 427, 353, 452, 120

Penal Code, 1860 ("IPC) read with Section 149 of IPC and Section 3 of

3

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

WEDNESDAY, THE TWENTY SIXTH DAY OF JUNE

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO

CRIMINAL PETITION NO: 3775/2024

Pinnelli Ramakrishna Reddy, ...PETITIONER/ACCUSED

AND

The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT

Counsel for the Petitioner/accused:

RAMALAKSHMANA REDDY SANEPALLI

Counsel for the Respondent/complainant:

PUBLIC PROSECUTOR (AP)

The Court made the following ORDER:

The petitioner/A. 1 has filed the Criminal Petition, as per Section 438 of the

Code of Criminal Procedure, 1973, seeking anticipatory bail concerning Crime

, registered at the Rentachinthala Police Station

A case has been registered against the Petitioner and others for the

offences punishable under Section 143, 147, 448, 427, 353, 452, 120

Penal Code, 1860 ("IPC) read with Section 149 of IPC and Section 3 of

IN THE HIGH COURT OF ANDHRA PRADESH

[3369]

WEDNESDAY, THE TWENTY SIXTH DAY OF JUNE

THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO

...PETITIONER/ACCUSED

...RESPONDENT/COMPLAINANT

Criminal Petition, as per Section 438 of the

anticipatory bail concerning Crime

Police Station of Palnadu

A case has been registered against the Petitioner and others for the

offences punishable under Section 143, 147, 448, 427, 353, 452, 120-B of Indian

Penal Code, 1860 ("IPC) read with Section 149 of IPC and Section 3 of

4

Prevention of Damage to Public Property Act, 1984 ("PDPP Act") and Section

131 and 135 of The Representation of the People Act, 1951 ("R.P. Act").

3. In brief, the prosecution case is that on 13.05.2024, around 12:30 PM, at

Paluvaigate Village, Rentachintala Mandal, Palnadu District, unidentified

individuals entered Polling Booth Station No. 202 and vandalized an EVM

(Electronic Voting Machine) and VVPAT (Voter Verifiable Paper Audit Trail)

machine before fleeing the scene. Following this incident, on 22.05.2024, a

Memo was submitted by the Sub-Inspector of Police, Rentachintala Police

Station, to the Junior Civil Judge's Court, Gurazala. The Memo alleged that on

13.05.2024, A.1, A.2 and A.3 unlawfully entered Polling Station No. 202. They

damaged the VVPAT machine, considered election equipment and government

property. Before damaging the equipment, the accused engaged in a physical

altercation with their adversaries at the polling station.

4. The learned counsel representing the Petitioner/A.1, argues that the

Station House Officer, Rentachintala Police Station, filed a Memo nine days after

the alleged incident, in which the Petitioner and two others were named as

accused under several sections of the law. The learned counsel contends that

opposition leaders orchestrated this delay to tarnish the Petitioner's reputation

and implicate him in an electoral offence. It is alleged that the Investigation

Officer was influenced to implicate the Petitioner unfairly. Furthermore, the

learned counsel asserts that the Petitioner has filed a complaint against the

Police Official involved, claiming that the allegations against him were concocted

through deliberations and discussions. The filing of the Memo before the Court

was characterized as belated and part of a design to keep the Petitioner away

from the counting process and hinder his ability to appoint election agents. The

learned counsel further contends that since the offences in question carry

punishments below seven years, the procedures outlined in Section 41-A of the

Cr.P.C., which deal with arrest procedures, should have been strictly followed.

5

Learned counsel emphasizes that the actions of the opposition party and the

police indicate a clear intent to arrest the Petitioner, which would result in

irreparable harm and injury to him.

5. The Respondent-State has submitted a counter, refuting all the allegations

presented in the Petition. The contentions outlined in the Counter need not be

reiterated, as they essentially mirror the report's content dated 13.05.2024.

Additionally, the Counter asserts that the Petitioner holds the position of a

Member of the Legislative Assembly and is currently contesting as an MLA

candidate for the Macherla Assembly Constituency. It alleges that the Petitioner

has been involved in violent activities and is the primary accused in the present

case. Additionally, the Petitioner is claimed to command a group of ruthless

associates. If he remains free to move publicly under these circumstances, it

could jeopardize the lives of innocent people and create widespread panic in the

villages. Moreover, the Counter asserts that the Petitioner is involved in 12

cases, indicating a pattern of alleged criminal behaviour.

6. Heard Sri T. Niranjan Reddy, learned Senior Counsel representing Sri

Rama Lakshmana Reddy Sanepalli, learned counsel, for the Petitioner/A.1, and

Sri N. Ashwani Kumar, learned Special counsel, representing the Respondent-

State (vide G.O.Rt.No.577, dt.12.06.2024). Both sides reiterated their

submissions on par with the contentions presented in the petition and Counter.

Consequently, the contentions raised by learned counsel need not be

reproduced.

7. In the common order of I.A.No.1 of 2024 in Crl.P.Nos.3788, 3789, 3790 of

2024 and I.A.No.1 of 2024 in Crl.P.No.3775 of 2024, this Court granted interim

protection to the Petitioner, ensuring no coercive steps and no arrest until

06.06.2024 under specified conditions. Dissatisfied with the Court’s order in

Crl.P.Nos.3775 and 3788 of 2024, a Special Leave Petition (criminal) Diary

No(s).25204 of 2024 and 25512 of 2024 were filed before the Hon’ble Apex

6

Court. After hearing arguments from the learned counsel representing both

parties, the Hon’ble Apex Court passed an order prohibiting the Petitioner from

entering the counting station at Macherla Assembly Constituency on 04.04.2024.

Additionally, the Hon’ble Apex Court requested this Court to expeditiously

dispose of the pending petitions based solely on their merits, without being

uninfluenced by the Apex Court’s order.

8. The parameters for granting anticipatory bail have been succinctly laid

down in Siddharam Satlingappa Mhetre V. State of Maharashtra

1

, wherein the

Hon’ble Apex Court has observed as follows:

“112. The following factors and parameters can be taken into consideration

while dealing with anticipatory bail:

“(i) The nature and gravity of the accusation and the exact role of the accused

must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant, including the fact as to whether the

accused has previously undergone imprisonment on conviction by a court

in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or other

offences;

(v) Where the accusations have been made only with the object of injuring or

humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail, particularly in cases of large

magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the

accused very carefully. The Court must also clearly comprehend the exact

role of the accused in the case. The cases in which the accused is

implicated with the help of Sections 34 and 149 of the Penal Code, 1860,

the Court should consider with even more excellent care and caution

because over-implication in the cases is a matter of common knowledge

and concern;

(viii) While considering the prayer for the grant of anticipatory bail, a balance

has to be struck between two factors, namely, no prejudice should be

caused to the free, fair and full investigation, and there should be

1

(2011) 1 SCC 694

7

prevention of harassment, humiliation and unjustified detention of the

accused;

(ix) The Court to consider reasonable apprehension of tampering of the

witness or apprehension of threat to the complainant;

(x) Frivolity in Prosecution should always be considered; it is only the element

of genuineness that shall have to be considered in the matter of grant of

bail and in the event of there being some doubt as to the genuineness of

the Prosecution, in the normal course of events, the accused is entitled to

an order of bail."

9. In Rakesh Baban Borhade V. State of Maharashtra and another

2

, the

Hon’ble Apex Court observed that;

“Anticipatory bail not to be granted as a matter of rule but should be granted

only when a case is made out and the Court is convinced that the accused

would not misuse his liberty”.

10. The learned counsel for the Petitioner relied on the decision of the Hon’ble

Apex Court in Sushila Aggarwal V. State (N.C.T. of Delhi)

3

, wherein it held that:

91.1. ………….. it should enure in favour of the accused without any

restriction on time. Normal conditions under Section 437(3) read with Section

438(2) should be imposed; if there are specific facts or features in regard to

any offence, it is open for the court to impose any appropriate condition

(including fixed nature of relief, or its being tied to an event), etc.

91.2. ………….. it is held that the life or duration of an anticipatory bail order

does not end normally at the time and stage when the accused is summoned

by the court, or when charges are framed, but can continue till the end of the

trial. Again, if there are any special or peculiar features necessitating the court

to limit the tenure of anticipatory bail, it is open for it to do so.

11. As stated in Siddharam Satlingappa Mhetre (supra), the nature and gravity

of the accusation and the exact role of the accused are the prime factors that

must be considered while granting or refusing to grant anticipatory bail to the

accused. The Prosecution has submitted a pen drive containing pertinent

2

2015 SAR (Criminal) 156

3

(2020) 5 S.C.C. 1

8

evidence related to the alleged offence and statements from witnesses gathered

during the investigative process. In response, the learned counsel representing

the Petitioner has raised objections regarding the authenticity and admissibility of

the video clippings, citing the Prosecution's failure to clarify its source. Notably, it

appears that the Election Commission of India has not disputed the authenticity

of the visuals depicted in the video footage. At present, the matter remains in the

investigative phase. Upon review of the CCTV footage, which spans 24 hours,

this Court initially finds it unlikely that such videos could have been fabricated.

Even otherwise, the statements recorded during the investigation also show that

the alleged conduct of the Petitioner, an MLA, during the polling process is

unacceptable. Prima facie the act of entering into a polling booth with others and

trying to the electronic voting machine is a blatant assault on the democratic

process. Such attributed behaviour, especially from a public representative,

undermines public trust in electoral system. The Petitioner has served as a MLA,

since 2009. He contested as an MLA, Macherla Assembly Constituency from

YSR Congress party during the General Elections 2024. There is a prima facie

indication that the Petitioner and others entered a polling station and that

Petitioner specifically damaged a VVPAT (Voter Verifiable Paper Audit Trail)

machine, crucial election equipment. When the polling agent attempted to resist

such actions, the Petitioner appeared to make threatening gestures. This Court

views that those entrusted with public office are expected to uphold exemplary

standards of conduct. Regrettably, the actions attributed to the Petitioner are

perceived to have fallen short of these expectations. When these accusations

are made against the Petitioner, and if the Court grants anticipatory bail, there is

a significant possibility of recurrence of such events. It could also send a wrong

signal to the public, suggesting that the Court is overly liberal in granting

anticipatory bail, even in the face of a blatant attack against the electoral system.

It is crucial to ensure that the judicial process does not appear

9

to condone or tolerate such grave alleged misconduct, as it would erode public

confidence in the justice system and the democratic process.

12. The Petitioner contends that as a contestant for MLA in the Macherla

Constituency, he has raised objections regarding the biased conduct of police

officers. He asserts that the allegations against him have been fabricated with

malicious intent.

13. As per the records, the crime was initially registered on 15.05.2024, at 2:30

PM, while the incident occurred at 12:30 PM on 13.05.2024. A memo was filed

identifying the Petitioner as the accused in this crime. The alleged offence

occurred within a polling booth, where it is claimed that the Petitioner entered

and committed the act. It is noted that polling officers, agents representing

various parties, and police personnel stationed at the booth were expected to

recognize the Petitioner upon entry. It is implied that without such recognition, his

entry would have been challenged. Despite this awareness of the Petitioner's

identity among polling staff, the report lodged on 15.03.2024, did not initially

name the Petitioner as an accused MLA, despite the incident occurring on

13.05.2024. A prudent person might assess the rationale behind withholding the

Petitioner's name as an accused in the initial report.

14. In this case, this Court does not find it appropriate to give significant weight

to the delay in naming the Petitioner as an accused in the report nor to the timing

of the report itself. These factors do not provide any advantage to the Petitioner's

case. Moreover, the Petition does not extend to assessing the Election

Commissioner of India's authority to issue directives for the Petitioner's arrest in

the specific circumstances presented. If the Petitioner intends to contest the

validity of such a directive, he should have pursued legal remedies according to

the established procedures. Under no circumstances can the Election

Commissioner's directive be considered a favourable basis for granting

anticipatory bail to the Petitioner.

10

15. The learned counsel representing the Petitioner argues that all the

offences for which the FIR was initially registered and subsequently added under

a memo filed on 22.05.2024, carry punishments below seven years,

necessitating strict adherence to the procedures outlined in Section 41A of

Cr.P.C. According to the learned counsel, the Station House Officer has

disregarded the guidelines set forth by the Hon’ble Supreme Court in the case of

Arnesh Kumar V. The State of Bihar

4

by actively pursuing the Petitioner's

arrest.

16. The learned counsel for the Petitioner relied on the decision of the Hon’ble

Apex Court in Mohd. Asfak Alam V. State of Jharkhand

5

, wherein a reference

was made to Arnesh Kumar V. State of Bihar (supra) and observed as follows:

“11. Our endeavour in this judgment is to ensure that police officers do not

arrest the accused unnecessarily and Magistrates do not authorise detention

casually and mechanically. In order to ensure what we have observed above,

we give the following directions:

11.1. All the State Governments to instruct its police officers not to

automatically arrest when a case under Section 498-AIPC is registered but to

satisfy themselves about the necessity for arrest under the parameters laid

down above flowing from Section 41CrPC;

11.2. All police officers be provided with a checklist containing specified sub-

clauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the checklist duly filled and furnish the

reasons and materials which necessitated the arrest, while

forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse

the report furnished by the police officer in terms aforesaid and only after

recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate

within two weeks from the date of the institution of the case with a copy to the

Magistrate which may be extended by the Superintendent of Police of the

district for the reasons to be recorded in writing;

4

(2014) 8 SCC 273

5

(2023) 8 SCC 632

11

11.6. Notice of appearance in terms of Section 41-ACrPC be served on the

accused within two weeks from the date of institution of the case, which may

be extended by the Superintendent of Police of the district for the reasons to

be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering

the police officers concerned liable for departmental action, they shall also be

liable to be punished for contempt of court to be instituted before the High

Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the

Judicial Magistrate concerned shall be liable for departmental action by the

appropriate High Court.

12. We hasten to add that the directions aforesaid shall not only apply to the

cases under Section 498-AIPC or Section 4 of the Dowry Prohibition Act, the

case in hand, but also such cases where offence is punishable with

imprisonment for a term which may be less than seven years or which may

extend to seven years, whether with or without fine.”

17. The learned counsel for the Petitioner further relied on the decision in

Arnesh kumar V. State of Bihar (supra), wherein the Hon’ble Court observed

that:

5. Arrest brings humiliation, curtails freedom and casts scars forever.

Lawmakers know it so also the police. There is a battle between the

lawmakers and the police and it seems that the police has not learnt its

lesson : the lesson implicit and embodied in CrPC. It has not come out of its

colonial image despite six decades of Independence, it is largely considered

as a tool of harassment, oppression and surely not considered a friend of

public. The need for caution in exercising the drastic power of arrest has been

emphasised time and again by the courts but has not yielded desired result.

Power to arrest greatly contributes to its arrogance so also the failure of the

Magistracy to check it. Not only this, the power of arrest is one of the lucrative

sources of police corruption. The attitude to arrest first and then proceed with

the rest is despicable. It has become a handy tool to the police officers who

lack sensitivity or act with oblique motive.

6………………no arrest should be made only because the offence is non-

bailable and cognizable and therefore, lawful for the police officers to do so.

The existence of the power to arrest is one thing, the justification for the

exercise of it is quite another. Apart from the power to arrest, the police

officers must be able to justify the reasons thereof. No arrest can be made in

a routine manner on a mere allegation of commission of an offence made

12

against a person. It would be prudent and wise for a police officer that no

arrest is made without a reasonable satisfaction reached after some

investigation as to the genuineness of the allegation………………….

7.1. …………..it is evident that a person accused of an offence punishable

with imprisonment for a term which may be less than seven years or which

may extend to seven years with or without fine, cannot be arrested by the

police officer only on his satisfaction that such person had committed the

offence punishable as aforesaid. A police officer before arrest, in such cases

has to be further satisfied that such arrest is necessary to prevent such

person from committing any further offence; or for proper investigation of the

case; or to prevent the accused from causing the evidence of the offence to

disappear; or tampering with such evidence in any manner; or to prevent such

person from making any inducement, threat or promise to a witness so as to

dissuade him from disclosing such facts to the court or the police officer; or

unless such accused person is arrested, his presence in the court whenever

required cannot be ensured. These are the conclusions, which one may reach

based on facts.

7.3. In pith and core, the police officer before arrest must put a question to

himself, why arrest? Is it really required? What purpose it will serve? What

object it will achieve? It is only after these questions are addressed and one

or the other conditions as enumerated above is satisfied, the power of arrest

needs to be exercised. In fine, before arrest first the police officers should

have reason to believe on the basis of information and material that the

accused has committed the offence. Apart from this, the police officer has to

be satisfied further that the arrest is necessary for one or the more purposes

envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.

9. Another provision i.e. Section 41-A CrPC aimed to avoid unnecessary

arrest or threat of arrest looming large on the accused requires to be vitalised.

Section 41-A as inserted by Section 6 of the Code of Criminal Procedure

(Amendment) Act, 2008 (5 of 2009), which is relevant in the context reads as

follows:

“41-A. Notice of appearance before police officer.—(1) The police officer

shall, in all cases where the arrest of a person is not required under the

provisions of sub-section (1) of Section 41, issue a notice directing the person

against whom a reasonable complaint has been made, or credible information

has been received, or a reasonable suspicion exists that he has committed a

cognizable offence, to appear before him or at such other place as may be

specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that

person to comply with the terms of the notice.

13

(3) Where such person complies and continues to comply with the notice, he

shall not be arrested in respect of the offence referred to in the notice unless,

for reasons to be recorded, the police officer is of the opinion that he ought to

be arrested.

(4) Where such person, at any time, fails to comply with the terms of the

notice or is unwilling to identify himself, the police officer may, subject to such

orders as may have been passed by a competent court in this behalf, arrest

him for the offence mentioned in the notice.”

The aforesaid provision makes it clear that in all cases where the arrest of a

person is not required under Section 41(1) CrPC, the police officer is required

to issue notice directing the accused to appear before him at a specified place

and time. Law obliges such an accused to appear before the police officer

and it further mandates that if such an accused complies with the terms of

notice he shall not be arrested, unless for reasons to be recorded, the police

officer is of the opinion that the arrest is necessary. At this stage also, the

condition precedent for arrest as envisaged under Section 41 CrPC has to be

complied and shall be subject to the same scrutiny by the Magistrate as

aforesaid.

18. In Satender Kumar Antil V. CBI

6

, while giving certain guidelines to

consider the bail applications, the Hon’ble Apex Court observed that:

5. ….........The caveat which has been put by the learned ASG is that where the

accused have not cooperated in the investigation nor appeared before the

investigating officers, nor answered summons when the court feels that judicial

custody of the accused is necessary for the completion of the trial, where

further investigation including a possible recovery is needed, the aforesaid

approach cannot give them benefit, something we agree with.

19. The learned Public Prosecutor, representing Respondent-State asserts

that the procedural guidelines outlined in Section 41A of Cr.P.C., cannot be

mandated as compulsory. He argues that it is within the discretion of police

authorities to determine whether to adhere to Section 41A of Cr.P.C., or proceed

under Section 41(1)(b) of Cr.P.C. Furthermore, he contends that issuing

directives to enforce specific procedural steps would infringe upon the autonomy

6

(2021) 10 SCC 773

14

of police officers in conducting their investigations. According to him, such

directives would amount to undue interference in the investigative process. He

emphasizes that the Court should exercise restraint and refrain from dictating

operational procedures to law enforcement agencies.

20. While considering the similar submissions in W.P. No.3848 of 2020, this

Court passed an order dated 28.04.2020, observing that even in the case of

Arnesh Kumar (3 supra), the Hon'ble Supreme Court of India has spelt out how

the Power under Section 41 (1) (b) and 41-A of Cr.P.C. are to be exercised. The

Hon'ble Supreme Court of India, after considering Section 41 (1) Cr.P.C., noted

that in all cases where the arrest of a person is not required, the Police Officer

should issue a notice directing the accused to appear before him at a specified

place and time. This Court concurs with the submission of the learned

Government Pleader that the discretion to arrest or not to arrest a person and,

after that, to follow Section 41-A of Cr.P.C. is solely vested in the Investigating

Officer. This Court cannot compel the police to act based on 41-A Cr.P.C. as a

matter of right. In this Court's opinion, the discretion should be left to the officer

concerned to arrest or not to arrest.

21. In consideration of the preceding arguments and established case law, the

fact that the offences prima facie alleged against the Petitioner carry

punishments of seven years or less under the law does not automatically entitle

the Petitioner to a notice under Section 41A of Cr.P.C. The decision whether to

follow the procedure outlined in Section 41A or to proceed with immediate arrest

under Section 41(1)(b) of Cr.P.C., rests solely within the discretion of the

investigating officer. It is well-settled that the authority to arrest or refrain from

arresting an accused person lies with the investigating officer, however, he must

exercise this discretion judiciously. Therefore, the decision to issue a notice

under Section 41A of Cr.P.C., is a matter for the investigating officer to determine

based on the circumstances of the case.

15

22. A perusal of the parameters for granting anticipatory bail laid down by the

Hon'ble Apex Court shows that the Court must consider the seriousness of the

offence, the likelihood of the Petitioner's absconding from justice, the

antecedents of the accused and chances of the Petitioner tampering with

evidence or threatening the witnesses.

23. The learned counsel representing the Respondent-State asserts that the

Petitioner is a habitual offender involved in 11 cases, including two similar

offences. The Prosecution has provided details of these cases, which are

outlined below:

Sl.

No.

Crime Number Offences Police Station

1. Cr. No.64 of 2009 341, 324, 506 r/w 34 of IPC Rentachintala

2. Cr. No.78 of 2014 147, 148, 324, 506 r/w 149 of IPC Veldurthy

3. Cr. No.34 of 2017

147, 148, 324, 302 r/w 149, 120B of

IPC

Veldurthy

4. Cr.No.97 of 2014 188, 341, 283 of IPC Karempudi

5. Cr. No.75 of 2014

147, 148, 307, 324, 354, 427 r/w

149 of IPC, Section 3(1)(x) of SC/ST

(POA) Act & Section 3 of E.S. Act

Machavaram

6. Cr. No.252 of 2015 143, 341, 188 r/w 149 of IPC Macherla Town

7. Cr. No.125 of 2018

147, 148, 427, 307 r/w 149, 188 of

IPC, section 32 of P.A. Act, 1861,

section 132(1) of R.P.Act

Macherla Town

8. Cr. No.92 of 2019

143, 188 of IPC, Section 32 of P.A.

Act, 1861, section 131(1)(A) of

R.P.Act

Macherla Town

9. Cr.No.331 of 2018 143, 341, 188 r/w 149 of IPC Gurazala Town

10.

Cr. No.52 of 2024

506, 509 of IPC & Section 131 (2) of

R.P.Act

Rentachintala

11. Cr. No.53 of 2024

143, 147, 148, 307, 324 r/w 149 of

IPC and section 131(2) of R.P.Act

Rentachintala

24. As per the G.O.Rt.No.577 Home (Courts.A) Department, dt.12.06.2024,

the Andhra Pradesh State Government has appointed Sri N. Ashwani Kumar,

learned counsel as Special Counsel to appear before the High Court in certain

16

cases of Macherla Assembly Constituency incidents involving the serious and

grave violation of Model Code of Conduct. The learned Senior Counsel

representing the Petitioner made submissions regarding the appointment of

Special Counsel in this case. It is not the Petitioner’s case that the Government is

not empowered to appoint Special Counsel on behalf Defacto Complainant/State.

25. Learned counsel for the petitioner has relied on a decision reported in

Paras Kumar Jain and another vs. State of M.P. and others

7

, wherein the

Madhya Pradesh High Court, observed in Para 16, which reads as under:

“16. Thus the position in law is settled that while appointing a Special

Public Prosecutor the State is required to apply its mind on the relevant

aspects of the matter and see that only a fair and impartial advocate is

appointed as Special Public Prosecutor. If an advocate has appeared on

behalf of the complainant in earlier proceedings, then this aspect needs

consideration by the State while appointing him as Special Public

Prosecutor. The appointment of the Special Public Prosecutor cannot be

made in a mechanical manner on mere asking by the complainant. It is

the responsibility of the State to ensure the fair trial and see that the

advocate appointed as Special Public Prosecutor, acts in non prejudicial

manner.”

26. The learned Special Counsel for the Respondent, relied on a decision

reported in Sri Omprakash Baheti and others vs. The State of Maharashtra

8

,

wherein the High Court of Bombay held that:

“18. xxx The records disclose that there has been application of mind by

respondent no. 1 before appointing Advocate Gupta as Special Public

Prosecutor and therefore, it cannot be said that respondent no. 1 has

appointed Advocate Gupta as Special Public Prosecutor mechanically at

the request of the complainant.”

27. The petitioner does not argue that the State Government failed to follow

proper procedures when appointing Sri N. Ashwani Kumar, as Special Counsel,

nor has the petitioner challenged these proceedings. Furthermore, the petitioner

7

2012(3) MPLJ

8

2006 SCC OnLine Bom 82

17

does not claim that the appointment of Sri N. Ashwani Kumar as Special Counsel

has caused any prejudice to him.

28. In light of these facts, this Court finds that the petitioner's submission

regarding the appointment of Sri N. Ashwani Kumar as Special Counsel is not

significantly relevant to the disposal of the current application.

29. The learned counsel for the Petitioner argues that custodial interrogation is

unnecessary, citing the Prosecution's assertion that it has gathered all pertinent

evidence demonstrating the Petitioner's involvement in the offence. Furthermore,

the Prosecution has not argued for the necessity of the Petitioner's custodial

interrogation.

30. In Ashok Kumar V. State of Union Territory Chandigarh

9

, the Hon’ble

Apex Court held that:

12. There is no gainsaying that custodial interrogation is one of the

effective modes of investigating the alleged crime. It is equally true that

just because custodial interrogation is not required that by itself may also

not be a ground to release an accused on anticipatory bail if the offences

are of a severe nature. However, a mere assertion on the part of the State

while opposing the plea for anticipatory bail that custodial interrogation is

required would not be sufficient. The State would have to show or indicate

more than prima facie why the custodial interrogation of the accused is

required for investigation.

31. This Court views that the investigating officer deserves a free hand to take

the investigation to its logical conclusion in a case containing severe allegations.

32. With regard to the Prosecution's case, the investigation remains

incomplete. Granting anticipatory bail to the Petitioner could potentially hinder the

ongoing investigation. There is a concern regarding threats to witnesses, and a

prima facie case implicating the Petitioner in a serious offence exists. The

9

2024 S.C.C. OnLine SC 274

18

allegations are severe, and the investigating agency has not yet been able to

interrogate the Accused/Petitioner.

33. The established legal principle is that anticipatory bail is not granted as a

matter of routine; it should only be provided when the Court is convinced that

exceptional circumstances warrant such an extraordinary remedy.

34. The Prosecution is concerned that the Petitioner, having cultivated a

strong grassroots following across every village and town over his four

consecutive terms as MLA, poses a risk if released on bail as there is a severe

apprehension that he may influence his followers and associates to seek

retribution against the witnesses or the victim. Additionally, the Prosecution has

presented matters that the Petitioner allegedly assaulted Namburi Seshagiri Rao,

an agent of the TDP, in continuation of the incident in question, prompting the

filing of a criminal case against him.

35. The Petitioner is shown to be involved in multiple cases, making his

antecedents a crucial factor to consider when deciding on an application for

anticipatory bail. The investigation concerning the Petitioner is ongoing. Before

the Order was issued on 23.05.2024 in this Petition, the Petitioner evaded arrest,

raising concerns about his potential to threaten the complainant or tamper with

evidence.

36. Considering all the attending facts and circumstances of the case as well

as the gravity of the offence, as also the settled principle of law that power of

grant of bail under Section 438 Cr.P.C., is to be sparingly exercised in

extraordinary circumstances and thus, no such circumstances being having been

made out in this case, this Court does not find it a proper case for granting the

relief of anticipatory bail to the Petitioners/Accused.

37. As a result, the Petition is dismissed.

19

38. It is explicitly clarified that the observations made in this Order are

preliminary and pertain solely to the decision on the present application without

indicating a stance on the case's merits.

Pending miscellaneous applications, if any, shall stand closed.

_____________________________

JUSTICE T. MALLIKARJUNA RAO

Date: 26.06.2024

MS / SAK

20

THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO

Criminal Petition No.3775 of 2024

Date: 26.06.2024

MS