THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO.4787 of 2021
ORDER:-
This petition is filed under Sections 437 and 439 of Code of the
Criminal Procedure, 1973 (for short „Cr.P.C.‟) seeking regular bail to
the petitioner/A-1 in connection with Crime No.167 of 2021 of
Vetapalem Police Station, Prakasam District, for the offence
punishable under Sections 420, 409 r/w 34 of the Indian Penal
Code, 1860 (for short, "I.P.C"). Later Section 5 of Andhra Pradesh
Protection of depositors and Financial Establishment Act, 1999 &
Section 22 r/w 4 of Banning of Unregulated Deposit Schemes Act,
2019 were added.
2. The case of prosecution is that the Accused being Secretary,
President, Vice President and Board of Directors of „The Vetapalem
Cooperative Credit Society Limited‟ committed Criminal breach of
trust, cheated gullible public with a common intention and failed to
return the amounts deposited by the customers that occurred prior
to 20.07.2021. Basing on the complaint given by one Gutti Srinivasa
Rao, a case is registered initially under Sections 420, 409 r/w 34 of
the I.P.C. against A-1 and some others without mentioning their
names. Later the section of law is added under Section 5 of Andhra
Pradesh Protection of depositors and Financial Establishment Act,
1999 & Section 22 r/w 4 of Banning of Unregulated Deposit
Schemes Act, 2019 and also the name of A-2 to A-10 to the list of
Accused. A-1, who being a paid Secretary collected deposits from
2000 depositors by way of fixed deposits, recurring deposits, daily
deposit scheme, savings bank accounts by offering decent interest.
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Out of the collected amounts Rs.16.59 lakhs was given as loan to the
members of the society. The balance amount found in the account of
the society with Union Bank of India (Andhra Bank, Vetapalem) is
Rs.42,549/-. It is a case of cheating to a tune of Rs.27 crores. Basing
on the complaint, the present case is registered.
3. Heard Sri G. Ramachandra Reddy, learned counsel for the
petitioner and learned Assistant Public Prosecutor for the
respondent-State.
4. Learned counsel for petitioner submits that the petitioner was arrested on 29.07.2021 and remanded to judicial custody on 30.07.2021. He is languishing in jail for the last 96 days. He submits that Section 5 of Andhra Pradesh Protection of depositors and Financial Establishment Act has no application to the present facts and circumstances of the case. The police has no jurisdiction to investigate the case and such power is vested with the District Co-operative Officer. He submits that the search proceedings are initiated and properties are attached. The police have also seized voluminous documents. Therefore, simultaneous prosecution under the provisions of Andhra Pradesh Protection of depositors and Financial Establishment Act and Indian Penal Code is not permissible. Moreover, it is only a mere apprehension that the petitioner may tamper with evidence or hamper the investigation process. Hence, his case may be considered for grant of bail.
5. Learned Assistant Public Prosecutor submits that a huge amount of Rs. 3,20,44,584/- (Rupees Three crores twenty lakhs forty four thousand five hundred and eighty four only) is misappropriated 3 by the petitioner and others and as such there is no bar for simultaneous prosecution under Andhra Pradesh Protection of depositors and Financial Establishment Act and Indian Penal Code. So far 394 witnesses are examined and 2000 depositors are yet to be examined. Therefore, taking into consideration the magnitude of the offence, the petitioner is not entitled for bail.
6. Heard learned counsel for the petitioner and learned Assistant Public Prosecutor. Perused the record.
7. Admittedly the petitioner was arrested on 29.07.2021 and remanded to judicial custody on 30.07.2021. He is languishing in jail for the last 96 days. So far police failed to complete the investigation and file charge sheet.
Section 167 (2) of Cr.P.C reads thus:
"(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
1
(a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish 4 bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by 1 the High Court, shall authorize detention in the custody of the police. Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;]. 2 Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention."
8. The Hon‟ble Apex Court in the case of Uday Mohanlal Acharya v.State of Maharashtra1 has observed that personal liberty is one of cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorize the detention of the accused in custody up to a maximum period as indicated in the proviso to sub Section (2) of Section 167 of Cr.P.C, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and inconformity with the provisions of the Criminal Procedure Code, and as such, it could be violative of Article 21 of the Constitution of India and the Hon‟ble Apex Court in recent judgment in S.Kasi v. State2 wherein it was observed that the indefeasible right to default bail under Section 167 (2) Cr.P.C. is an integral part of the right to personal liberty under Article 21 of the 1 (2001)5 SCC 453 2 2020 SCC OnLine SC 529 5 Constitution, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was emphasized that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge sheet. Additionally, it is well settled that in case of any ambiguity in the construction of a penal statute, the Courts must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedure providing for the curtailment of the liberty of the accused.
9. In view of the foregoing reasons as the charge sheet is not filed within the statutory period, the petitioner is entitled for statutory bail, which is an indefeasible right of the accused as laid down by the Hon‟ble Apex Court in catena of cases.
10. Accordingly, this Criminal Petition is allowed. The petitioner/ A-1 shall be enlarged on bail in connection with Crime No. 167 of 2021 of Vetapalem Police Station, Prakasam District on executing self bond for Rs.1,00,000/- (Rupees One lakh only) with two sureties for a like sum each to the satisfaction of the Court of the Junior Civil Judge, Chirala. On such release, the petitioner shall not leave the State and he shall appear before the Station House Officer, Vetapalem Police Station, Prakasam District once in a week i.e. on every Saturday between 10.00 AM and 1.00 PM, till completion of trial. The petitioner shall cooperate with the investigation and he 6 shall not influence the witnesses. In case petitioner fails to cooperate with the investigation, the prosecution is at liberty to move an application for cancellation of bail.
Consequently, miscellaneous applications pending, if any, shall stand closed.
___________________________ LALITHA KANNEGANTI, J Date: 05.10.2021 EPS 7 THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI 2 (Allowed) CRIMINAL PETITION No.4787 of 2021 Date: 05.10.2021 EPS