Udayagiri Khadar Basha vs The State Of Andhra Pradesh
2021 Latest Caselaw 1180 AP

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
FRIDAY, THE TWENTY SIXTH DAY OF FEBRUARY,
TWO THOUSAND AND TWENTY ONE
: PRESENT: f
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI ioe /
CRIMINAL PETITION NO: 878 OF 2021 yet
Between:

   

mn

D.No.1/8/419, Rajiv Nagar Colony, Near Raja Reddy Colony, Pulivendula ae
Kadapa District
| ...Petitioner/Accused No.1
AND
The State of Andhra Pradesh, rep by its Public Prosecutor, AP High Court, Amaravathi
...Respondent/Complainant

Petition under Sections 437 & 439 of Cr.P.C, praying that in the circumstances
Stated in the memorandum of grounds filed in the Criminal Petition, the High Court may
be pleased to release the petitioner/Accused no.1 on bail pending enquiry and trial on
the file of Judicial Magistrate of First Class, Kamalapuram in crime No.201 of 2020 of
Yerraguntla(U/G) Police Station, YSR Kadapa 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 Venkat Reddy Kodumury,
Advocate for the Petitioner and of Public Prosecutor for the Respondent, the Court

made the following.

ORDER

HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

iminal Petition No.878 of 2021

Cr

ORDER:

This Criminal Petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking regular pail to the petitioner / A.1 in connection with Crime No.201 of 2020 of Yerraguntla (U /G) Police Station, Kadapa District, registered for the offences punishable under Sections 420, 376, and 506 read with 34 of the Indian Penal

Code, 1860 (for brevity "IPC").

2. A complaint is lodged on 02.12.2020 by the de' facto complainant, stating that the parents of the de facto complainant fixed her marriage with the petitioner in the presence of elders with a condition to pay 11 thulas of gold and cash of Rs.4,00,000/- towards dowry as demanded by A.1 to A.4 and to perform marriage by spending his money. At that time, the petitioner informed that he is working as Home Guard at Pulivendula Police Station. Later, the petitioner used to visit the house of de facto complainant, while she was alone in the absence of inmates of the house and tried to molest her for which she bluntly refused. It is further alleged that later the petitioner with deceptive words that he is going to marry her shortly, had sexual intercourse with 'the de facto complainant for 2 or 3 times though she objected the same. On 05.12.2020 the parents of the de facto complainant went to Pulivendula and asked the petitioners and the other accused about performance

of the marriage, for which they replied that unless dowry

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CRLP.No.878 of 2021

amount is paid well in advance prior to marriage, they will not perform marriage and the parents of the de facto complainant expressed inability to pay such huge amount. Basing on the

said complaint, the present crime is registered.

3. Heard Sri Venkat Reddy Kodumury, learned counsel for the petitioner/A.1 and the learned Additional Public Prosecutor

for the respondent-State.

4. Learned counsel for the petitioner submits that the petitioner has nothing to do with the alleged offence and they were not engaged as alleged by the de facto complainant. He submits that the allegations levelled against the petitioner are all omnibus allegations. He further submits that the ingredients of Section 430 and 376 IPC are not attracted to the petitioner. He submits that the petitioner is languishing in jail from 28.12.2020. Even after completion of investigation, the police failed to file charge sheet within the statutory period. Learned counsel further submits that as per Section 167(2) of Cr.P.C, the police have to file the charge sheet within a period of sixty days, | but, in this case, the police neither filed any charge sheet nor filed any application seeking extension of time. As such, the

petitioner is entitled for statutory bail.

5. On the other hand, learned Additional Public Prosecutor states that so far 9 witnesses were examined and the police have

to file charge sheet.

6.

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CRLP.No.878 of 2021

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), 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."

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CRLP.No.878 of 2021

7. The Hon'ble Apex Court in the case of Uday Mohanlal

| Acharya v.State of Maharashtra! 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. State? 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 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

' (2001)5 SCC 453 * 2020 SCC OnLine SC 529

5 LK, J CRLP.No.878 of 2021 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 as contemplated under Section 167 (2) of Cr.P.C., the petitioner is entitled for a 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/A.1 shall be enlarged on bail on his executing personal bond for Rs.20,000/- (Rupees twenty thousand only) with two sureties for a like sum each to the satisfaction of the Judicial Magistrate of First Class, Kamalapuram, YSR Kadapa

District.

Sd/-T.Madhavi yf

ASSISTANT REGISTRAR TRUE COPY!// VK SECTION GFFICER

To,

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our

The Judicial Magistrate of First Class, Kamalapuram, Kadapa District. The Superintendent, Central Prison, Kadapa, Kadapa District.

The Station House Officer, Yerraguntla(U/G) Police Station, YSR Kadapa District.

One CC to Sri Venkat Reddy Kodumury, Advocate [OPUC]

Two CCs to Public Prosecutor, High Court of Andhra Pradesh. [OUT] One spare copy

HIGH COURT

KJ

DATED: 26/02/2021

ORDER CRLP.No.878 of 2021

DIRECTION

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