P. Narayana, S/o. Subbaramaiah vs State of Andhra Pradesh Through the Investigating Officer/Station House Officer, Chittoor

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(AP) 531

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
R. Raghunandan Rao, J.
P. Narayana, S/o. Subbaramaiah - Petitioner
Versus
The State of Andhra Pradesh Through the Investigating Officer/Station House Officer, Chittoor – Respondent
Crl.P.No.9346 of 2022
Decided On : 06-12-2022

Advocates:
Advocate Appeared:
For the Petitioner: Sri Sidharth Luthra

Headnote:
Constitution of India, 1950 - Article 22(2) –Indian Penal Code, 1860 – Section 408, 409, 209, 120-B, 201 –Criminal Procedure Code, 1973- Section 41, 57, 167, 397(2), 41-A, 379, 439 - Information Technology Act, 2000 - Section 65 - Andhra Pradesh Public Examinations (Prevention Of Malpractices And Unfair Means) Act, 1997 - Section 8, 10 – Punishment of criminal conspiracy -Tampering with computer source documents - Causing disappearance of evidence of an offence committed - Dishonesty making false claim in court - Criminal breach of trust by clerk or servant - Appeal against conviction by High Court in certain cases -Person arrested not to be detained more than twenty- four hours - Procedure when investigation cannot be completed in twenty four hours - Procedure where Judges of Court of Appeal are equally divided- Arrested individual should be produced before a judicial magistrate within 24 hours of his arrest -Whether provisions of Section 409IPC cannot be made applicable to present case, is premature –Held, Court appears to have lost sight of fact that it was prosecution which produced petitioner before court and it was investigating officer, who should have asked public prosecutor to be present when petitioner was being produced before Court - In fact, petitioner has now placed, this Court, material to show that action has been initiated against public prosecutor for having failed refused to appear before Magistrate when petitioner was produced before Magistrate - In circumstances, ground on which Sessions Judge had set aside order of Magistrate is not correct - Court on merits of order of Magistrate -However, this Court is not inclined to go into these issues as appropriate forum for these submissions is revisional court – Ordered Accordingly.

ORDER :

The petitioner herein is arrayed as accused No.9 in Crime No. 111 of 2022 of Chittoor I town police station for offences punishable under section 5 read with section 8 and 10 of the Andhra Pradesh Public Examinations (Prevention Of Malpractices And Unfair Means) Act, 1997 (Public examinations Act’) along with Sections 408, 409, 209, 120-B IPC and Section 65 of the Information Technology Act.

2. The petitioner was arrested on 10.09.2022 and produced before the learned Magistrate on 11.05.2022. The learned Magistrate, after considering the facts and circumstances of the case, recorded that she was not satisfied with the grounds mentioned for arrest of the petitioner in the remand report and directed release of the petitioner on execution of a personal bond for Rs.1,00,000/-with two sureties, for a like sum each, to ensure his appearance before the Court as and when required.

3. Aggrieved by the said order, the State had filed a revision petition, under Section 397 Cr.P.C., bearing C.R.P.No.14 of 2022 before the IX Additional District and Sessions Judge, Chittoor. The revisional Court, by order dated 31.10.2022, had set aside the order of the Magistrate dated 11.05.2022 and directed the petitioner to surrender before the IV Additional Judicial Magistrate of First Class, Chittoor, on or before 30.11.2022, with a further direction to the Magistrate to remand the petitioner to judicial custody for the offences mentioned above. Aggrieved by the said order, the petitioner has approached this Court under Section 482 Cr.P.C.

4. Sri Sidharth Luthra, learned Senior Counsel appearing for Sri G. Subba Rao, learned counsel for the petitioner, assails the said order on the following grounds:-

b) Even if the order is to be treated as an order refusing remand, the finding of the revisional Court, that refusal to remand would not amount to an interlocutory order and consequently a revision would be maintainable against such an order, is erroneous.

c) The finding of the revisional Court that the Public prosecutor was not given an opportunity of hearing required under Section 439 Cr.P.C and 437 Cr.P.C. is belied by the fact that the Government had initiated proceedings against the public prosecutor for having absented herself despite being informed by the investigating officer about the hearing being conducted for the remand of the petitioner herein.

d) The revisional Court by taking into account Section 409 IPC., while passing the impugned order, had committed an error. The provisions of I.P.C., including section 409 would not be applicable as the complaint was filed against the petitioner, under the provisions of the Andhra Pradesh Public Examinations (Prevention Of Malpractices and Unfair Means) Act, 1997, (for short ‘the Public Examinations Act’) which is a self contained special Act. Reliance is placed upon Sharat Babu Digumarti vs. Govt. (NCT of Delhi), (2017) 2 SCC 18 (paragraphs 18, 25, 30, 31 and 37 to 39)

5. The learned Additional Advocate General, appearing for the State, supports the revisional order on the following grounds:

a) The order of the Magistrate was an order refusing remand and not an order granting bail.

b) The last proviso to Section 437(1) Cr.P.C., requires notice to be given to the Public prosecutor whenever an application for bail is being considered by a Court. In the