HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.4736 OF 2021
ORDER:
The present Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973, to quash the order dated 17.06.2021 in petition filed under Section - 439 of Cr.P.C. vide S.R. No.406 of 2021 in Crime No.44 of 2021 passed by the learned VII Additional District and Sessions Judge (Fast Track Court) at Nirmal, returning the regular bail application filed by the petitioners herein, and for consequential direction to the Court below to receive, number it and dispose of the same in accordance with law.
2. The petitioners herein are accused Nos.20 and 21 in Crime No.44 of 2021 of Bhainsa Town Police Station. The offences alleged against them are under Sections - 143, 147, 448, 153-A, 435, 436 and 427 read with 149 of IPC.
3. The petitioners herein have filed a petition vide Crl.M.P. (SR) No.406 of 2021 in the aforesaid crime seeking regular bail. According to them, the police have arrested them in Crime No.52 of 2021 pending on the very same police station viz., Bhainsa Town Police Station and they are in judicial custody since 20.05.2021. The petitioners herein are also accused in other crimes of the very same police station and they are in judicial custody since 14.03.2021.
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i) It is the further contention of the petitioners that Bhainsa Town Police Station have produced them under Prisoner's Transit (PT) Warrant, and at present they are in District Jail, Adilabad.
ii) The police, in the counter filed in bail application filed by the petitioners in Crime No.52 of 2021, have mentioned that the petitioners herein are also accused in several crimes including the present crime. Therefore, they have filed bail application vide S.R. No.406 of 2021 in Crime No.44 of 2021, and the Court below returned the said bail application with the following objections on 15.06.2021:
"No document filed except counter along with the petition. No RCD filed along with this petition. Hence may be return.
Returned Sd/-"
iii) Then, the petitioners re-submitted the aforesaid returned bail application with the following grounds:
"Resubmitted as the citation is enclosed herewith the petition.
As per the counter filed by prosecution in CrMP 203/21 in Cr.No.52/21 shown as absconding, the remaining will be argued. Hence prayed to call on bench."
iv) After resubmission of the bail application by the learned counsel for the petitioners, the Court below again returned the said petition on 17.06.2021 with the following reasons:
"
1) Earlier objections not complied.
2) No relevant documents filed before this Court showing remand of accused in this crime.
3) Counter filed by APP in Cr.No.52/2021 of P.S. Bhainsa (T) cannot be considered in this for numbering this petition.
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4) Citation filed along with this petition is not applicable at this stage in this petition, for showing remand of accused in this case as this is a regular bail petition.
5) Proper documents showing remand of accused before trial court shall be filed.
Hence this petition may be returned.
Returned the same.
Sd/-
VII ADJ (FTS), Nirmal."
v) Challenging the said returned order, the petitioners filed the present petition.
4. Heard Mr. Gummalla Bhasker Reddy, learned counsel for the petitioners and learned Assistant Public Prosecutor appearing on behalf of respondent - State.
5. Learned counsel for the petitioners would submit that the said objections raised by the Court below are contrary to the law laid down by this Court in Tupakula Appa Rao v. State of A.P.1 and Viswanathan v. The State of Andhra Pradesh2 and, therefore, he sought to allow the petition by overruling the objections taken by the Court below.
6. In Tupakula Appa Rao1, a learned Single Judge of the High Court of Andhra Pradesh at Hyderabad relying upon the judgment rendered by the Full Bench Court of Allahabad High Court in Shabbu v State of Uttar Pradesh [1982 Crl.J 1757 ]; State of Maharashtra v. Najakat Alia Mubarak Ali [(1980) 1 SCC 554 ] and Raghbir 1 . 2002 (1) ALT (Crl.) 76 2 . 2019 (1) ALT 755 KL,J Crl.P. No.4736 of 2021 4 Singh v. State of Haryana [1984 (4) SCC 348] held that the cases registered against the petitioner pertain to the same police station and the fact that his arrest could have been shown in other cases also simultaneously but not shown, the facts warrant a conclusion that he is deemed to have been in custody in respect of other crimes also although formal arrest is not shown in the other cases also. Whether the bail can be granted or not, depends upon the facts of each case and would be left to the discretion of the Court to exercise the same on merits in each case.
7. In Viswanathan2 referring to the principle laid down in Tupakula Appa Rao1, Rakesh Kumar Paul vs. State of Assam [(2017) 15 SCC 67], Niranjan Singh v. Prabhakar Rajaram Kharote [1980(2) SCC 559] and Sundeep Kumar Bafna v. State of Maharashtra [2014 (16) SCC 623], learned Single Judge of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh held as under:
"43. It is not end of the matter herein for the reason that in similar cases empty in number, the inaction of the police since resulting grave injustice and curtailment of the personal liberty and right to life of the accused persons languishing in jails without even entitlement to the period of remand for set off or to count for the default bail, irrespective of entitlement to claim anticipatory bail or regular bail, for such an injustice to be arrested; it is necessary to direct following the expression of the Apex Court Constitution Bench in Ramchandra Rao supra and the importance of right to life under Article 21 of the Constitution of India including for the speedy investigation KL,J Crl.P. No.4736 of 2021 5 and production of the accused to face the enquiry/trial and from the expression of the Apex Court in Inhuman Conditions in 1382 Prisons, in Refence case, particularly from para 56 imposing liability on the State Legal Services Authority and Member Secretary of the State Legal Services Authority of every state in coordination with the Secretary, District Legal Services Authority of every District including each of the Mandal Legal Services Committees in both the States of Andhra Pradesh and Telangana are by virtue of the expression of the Apex Court in Guideline No.56.3 supra hereby required as specifically shall see that where the accused is in jail as a pretrial prisoner and in more than one case and so far not pretrial or pending trial prisoner, which includes under trial prisoners where trial not commenced from production of the accused before the concerned Court, applications/memos cause to be filed under Section 267 Cr.P.C. for the learned Magistrates/Sessions Judges/designated Special Courts of original jurisdiction concerned to secure the presence of the accused and to take the accused to judicial custody on P.T. warrant in the crimes or calendar cases or other special cases or sessions cases pending before them.
44. Further the Director General of Police of both the states of Andhra Pradesh and Telangana are also directed hereby to direct the Superintendents of Police or the Commissioner/Additional Commissioner/Assistant Commissioners concerned, to exercise their duty and power to the extent applicable from the police manual with Standing Orders and instructing and from Section 36 Cr.P.C. in every month coordinating meeting to see that where an accused is shown involved in a crime to cause verify if at all involved in more than one crime and if not produced in the other crimes, to see that they shall be cause produced if in jail on P.T. warrant under Section 267 Cr.P.C., leave about if enlarged on bail in any one or more cases and if not granted bail in other cases for their production in those other cases so that the accused may not KL,J Crl.P. No.4736 of 2021 6 loose the benefit of period of set off and period of entitlement to the default bail respectively under Section 428 and 167 Cr.P.C.
45. Coming to the expression of the Constitution of Bench of the Apex Court in Rakesh Kumar Paul vs. State of Assam26 on the scope of Section 167 Cr.P.C. it is in relation to the entitlement of the default bail, the majority expression says duty of the Magistrate or Court concerned to grant the default bail in recognition of the personal liberty, where also discussed the right of fair and speedy investigation and entitlement to default bail and right to legal aid as part of the rights enshrined under Article 21 of the Constitution of India to the accused involved in a crime. Thereby, the Sessions Judges or the Magistrates concerned in both the States and by virtue of this order and because of the settled (2017) 15 SCC 67 position of law from the above particularly from the expressions in Tupakula Appa Rao supra, Niranjan Singh supra reiterated in Sundeep Kumar Bafna supra, entertain the regular bail applications from the accused in deemed custody even not produced on P.T. warrant and not surrendered voluntarily, as the case may be."
Thus, it can be deemed that the petitioners herein, who are accused Nos.20 and 21 in Crime No.44 of 2021 and arrested in Crime No.52 of 2021 of the very same police station are in judicial custody in Crime No.44 of 2021 and they have every right to file a bail application seeking bail treating that they are in judicial custody in Crime No.44 of 2021 also.
8. In the written instructions submitted by the Investigating Officer and Circle Inspector of Nirmal Town Police Station, it is specifically mentioned that the petitioners herein are accused Nos.20 KL,J Crl.P. No.4736 of 2021 7 and 21, arrested them in Crime No.25 of 2021, Crime No.41 of 2021 of the very same police Station viz., Bhainsa Town Police Station. The details are also specifically mentioned. It is further mentioned that petitioner No.2 was taken into police custody on 16.04.2021 in Crime No.19 of 2021. On 17.05.2021, a requisition has been filed before the learned Magistrate to issue PT Warrant against the petitioners herein for their production and to take their cognizance in this case by fixing a date and time. Accordingly, the learned Magistrate ordered to produce the petitioners herein before it on or before 30.05.2021. In compliance of the said order dated 18.05.2021, both the petitioners were brought from the District Jail, Adilabad and produced them before the learned Magistrate.
9. Learned Assistant Public Prosecutor has fairly submitted that the learned Magistrate has to entertain the bail application considering the principle laid down in Tupakula Appa Rao1 and Viswanathan2.
10. In view of the above said discussion and also the principle laid down in the aforesaid decisions, it is deemed that the petitioners herein are in judicial custody in Crime No.44 of 2021. Therefore, the learned VII Additional District and Sessions Judge (FTC) at Nirmal, ought to have received the bail application filed by the petitioners vide S.R. No.406 of 2021 and dispose of the same in accordance with law. Instead of doing so, the learned Judge returned the same with the objections mentioned above. Thus, according to this Court, the said KL,J Crl.P. No.4736 of 2021 8 objections raised by the Court below with regard to the maintainability are unsustainable and accordingly the same are overruled.
11. In view of the aforesaid discussion, the present Criminal Petition is allowed setting aside the order dated 17.06.2021 in petition filed under Section - 439 of Cr.P.C. vide S.R. No.406 of 2021 in Crime No.44 of 2021 passed by the learned VII Additional District and Sessions Judge (Fast Track Court) at Nirmal. Accordingly, the learned Judge is directed to number the said bail application filed by the petitioners vide S.R. No.406 of 2021 in Crime No.44 of 2021 and dispose of the same in accordance with law.
As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 26th July, 2021 Note:
Registry is directed to return the original petition filed by the petitioners herein so as to enable them to file before the Court below under due acknowledgment. (B/O.) Mgr