The main legal point established in the judgment is that the nature of the offence determines the eligibility for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.

JUDGMENT

Cheekati Manavendranath Roy, J. - These two Criminal Petitions under Section 438 of the Code of Criminal Procedure, 1973, are filed to enlarge the petitioners on bail in the event of their arrest.

2. The petitioners in Criminal Petition No.2683 of 2022 are a-2 to a-7 and the petitioners in Criminal Petition No.2739 of 2022 are a-8 and a-9 in the same Crime No.77 of 2022 of Kalla Police Station, West Godavari District. Therefore, these two petitions are heard together and they are being disposed of by this common order.

3. a case under Sections 449, 342, 354a, 302, 201 r/w 34 IPC was registered against the petitioners along with a-1 in the above crime.

4. Briefly stated, it is the case of the prosecution that on 04.04.2022 when the deceased was sleeping in her room in her house, a-1 trespassed into her room during night time and attempted to commit rape on her. The deceased resisted him. It is stated that a-1 has banged her head in the said process to the floor. The deceased sustained grievous injuries in the said attack and died. Thereafter, a-1 escaped from the scene of offence. It is the further case of the prosecution that the petitioners, who are a-2 to a-9, are all the relatives of a-1. after the murder was committed, it is stated that the petitioners herein made an attempt to burn the dead body of the deceased and thereby made an attempt to screen the offence. Therefore, it is stated that the petitioners have committed the offence punishable under Section 202 r/w 34 IPC.

5. Heard learned counsel for the petitioners and learned additional Public Prosecutor for the State.

6. as per the prosecution case, the de facto complainant is the grandmother of the deceased. It is stated that she is in the next room where the deceased was sleeping on the date of offence. The facts of the case reveal that it is a-1 who has trespassed into the house of the de facto complainant and attempted to commit rape on the deceased and when she resisted that he attacked her and banged her head to the floor and the deceased sustained grievous injuries in the said attack and died. So, the allegation of committing the offences punishable under Sections 449, 342, 354a and 302 IPC of committing the murder of the deceased is against a-1. He is the principal offender in this crime. It is the case of the prosecution that the petitioners, who are a-2 to a-9, have subsequently made an attempt to burn the dead body of the deceased to screen the said offence of the murder. Therefore, they are only liable for the offence punishable under Section 201 r/w 34 IPC.

7. as the allegation of offence against these petitioners, who are a-2 to a-9, is only under Section 201 IPC, the said offence is bailable in nature. as per the language employed in Section 438 Cr.P.C, a petition for grant of anticipatory bail can be entertained only when the accusation regarding commission of any non-bailable offence is made against the petitioners and when they are apprehending arrest on the accusation of commission of non-bailable offence is made against them. Since the accusation made against the petitioners herein is only under Section 201 IPC which is bailable in nature, these two petitions filed under Section 438 Cr.P.C for grant of anticipatory bail to the petitioners, who are a-2 to a-9, is not maintainable under law.

8. Therefore, the Criminal Petitions are dismissed as not maintainable. However, as the offence against the petitioners under Section 201 IPC is bailable in nature, they can pursue their remedy of seeking bail in the said offence in the appropriate Court.