Andhra Pradesh High Court - Amravati

Veeragandham Papa Rao, vs The State Of Andhra Pradesh, on 23 February, 2021

Bench: Lalitha Kanneganti

 

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
TUESDAY, THE TWENTY THIRD DAY OF FEBRUARY,
TWO THOUSAND AND TWENTY ONE

:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO: 941 OF 2021

Between:

Veeragandham Papa Rao, S/o. Venkateswarlu, aged 36 years, Hindu-Kamma,
R/o.Dr.No.15-1-793, 2nd Lane, Nehru Nagar, Macherla Town and Mandal,
Guntur District, native of Kambampadu village, Macherla Mandal, Guntur District.

Petitioner/Accused
AND

The State of Andhra Pradesh, through Macherla Urban Police Station, Guntur
District, rep. by its Public Prosecutor, High Court of A.P.

Respondent

Petition under Section 437 & 439 of Cr.P.C, praying that in the circumstances
stated in the affidavit filed in support of the Criminal Petition, the High Court may be
pleased to enlarge the Petitioner on bail in connection with CR.No.193/2020

dt.30.11.2020 before the Macherla Urban P.S., Guntur District.

The petition coming on for hearing, upon perusing the Petition and the affidavit
filed in support thereof and upon hearing the arguments of Sri K.H.V.Siva Kumar,
Advocate for the Petitioner and the Public Prosecutor, High Court of A.P. at Amaravati,

for the Respondent/State and the Court made the following:

ORDER

, '

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO. 941 OF 2021 ORDER:-

This criminal petition is filed under Section 437 and 439 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") seeking regular bail to the petitioner/Accused in connection with Crime No. 193 of 2020 of Macherla Urban Police Station, Guntur District registered for the offences punishable under Sections 307 of the

Indian Penal Code, 1860.

2. A complaint was lodged by the de facto complainant stating that on 30.11.2020 at 11.00 AM, after completion of call work in the Additional Junior Civil Judge's Court, Macherla, the complainant was returning to his home on his motor cycle and when he crossed the house of the Magistrate and reached the black stone pestle molding area, all of a sudden the accused who is standing at road margin, attacked the complainant with an intention to kill him and hacked the complainant's head from back side. Immediately, passersby and some other co-advocates rushed there, rescued the complainant and admitted in the Government hospital for treatment. Basing on the said statement,

the crime is registered.

3. Heard Sri KHV Siva Kumar, learned counsel for the

_ petitioner and the learned Additional Public Prosecutor for the

respondent-State.

4. Learned counsel for the petitioner submits that the petitioner was remanded to judicial custody on 30.11.2020 and

since then he has been languishing in jail.

5. submits that the investigation is pending, examined and they are awaiting for wound certificate. As per the hospital intimation, the complainant has sustained an injury on

his head. He does not dispute the fact that the charge sheet is not

Learned Additional Public Prosecutor oth the other hand

filed even after lapse of sixty days.

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-

(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 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 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),

six witnesses were

the accused shall be detained in custody so long as he does not furnish bail;]."

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.

7. The Hon'ble Apex Court in case of Uday Mohanlal Acharya v.State of Maharashtra! has observed that personal liberty is one of the 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 upto 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, could be violative of Article 21 of the Constitution of India and the Hon'ble Apex Court in recent judgment in S.Kasi v. State? wherein it was observed that the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, 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

1 (2001)5 SCC 453 2 9020 SCC OnLine SC 529

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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.

8, In view of the foregoing reasons as the charge sheet is not filed within the statutory period of sixty days, 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.

9. Accordingly, this Criminal Petition is allowed. The petitioner/Accused shall be enlarged on bail on their executing personal bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties for a like sum each to the satisfaction of the Court of

the Additional Junior Civil Judge, Macherla.

Consequently, miscellaneous applications pending, if any,

shall stand closed. .

d/- SHAIK MOHD. RAFI, ASSISTANT REGISTRAR

ITRUE COPYII i Sa | For ASSISTANT REGISTRAR

dit i t Gurazala, Guntur. | ditional Sessions Judge, a | | The S aperintendant, Sub-Jail Gurazala, Guntur Guntur District, (by RPAD)

i i Macherla Urban P.S., The Sao SRL K 4 WSIVA KUMAR Advocate [OPUC]

i . at One CC to SRI. PUBLIC PROSECUTOR, High Court of A.P. a

Amaravati.[OPUC] One spare copy

. MSR

26.02.2021

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