Andhra Pradesh High Court - Amravati

Allu Jagadesh vs And on 3 February, 2021

 

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

WEDNESDAY, THE THIRD DAY OF FEBRUARY
TWO THOUSAND AND TWENTY ONE
: PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO: 278 OF 2021

   

Between:

1. Allu Jagadesh, S/o (Late) Akkaya, Aged 31 years, Yadava, Golla veedhi, Salur.
2. Allu Kumar, S/o (Late) Akkayya Aged 34 years, Golla veedhi, Salur
Petitioner/Accused-1 & 2
AND
The State of A.P, Rep. By its Public Prosecutor, High Court of at Hyderabad Through
the SHO Salur Town Police P.S., Vizianagaram District.
Respondent

Petition under Section 437 & 439 of Cr.P.C, praying that in the circumstances
stated in the grounds filed in Criminal Petition, the High Court may be pleased to
enlarge the petitioners on Regular Bail to the petitioners/accused in Crime No. 470 of.
2020 of Salur Town P.S, Vizianagaram District, dated 09-10-2020

The petition coming on for hearing, upon perusing the Petition and the grounds
filed in support thereof and upon hearing the ar nts of SRI VINODIN RUTH
MADAPALLI Advocate for the Petitioners, and off BLIC PROSECUTOR for the
Respondent, the Court made the following.

ORDER:

Kee

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO.278 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 petitioners/A-1 and A-2 in connection with Crime No.470 of 2020 of the Station House Officer, Salur Town Police Station, Vizianagaram District, for the offences punishable under Sections

302, 201 and 120(b) of the Indian Penal Code, 1860.

2. The case of prosecution is that initially a case under Section 174 Cr.P.C is registered. Thereafter, the crime is registered under the aforementioned Sections. Later on 09.10.2020 the petitioners who are accused Nos.1 and 2 went to the Police Station and confessed that they killed the deceased Bobbilli Appayya due to suspicion that he is practicing witchcraft. The police arrested the petitioners and

remanded them to judicial custody on the same day.

3. Heard Ms. M.Vinodin Ruth, learned counsel for the petitioners and the learned Additional Public Prosecutor for the respondent-

State.

4. Learned counsel for the petitioners submits that the though the petitioners are in jail from the last 90 days, the police have not

filed charge sheet as such, they are entitled for statutory bail.

3. The learned Additional Public Prosecutor on the other hand submits that the investigation is in progress and that accused No.4 has to be apprehended. He further submits that eight witnesses were

examined. poe?

6. 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 Jit, 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,-

@ 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;

{ti) 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;

(¢) 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."

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

1 (2001)5 SCC 453

Prax,

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 toa 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 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.

2 9920 SCC OnLine SC 529

SRitcar

8. In view of the foregoing reasons, as the charge sheet is not filed within the statutory period of ninety days as contemplated under Section 167 (2) of Cr.P.C., the petitioners are 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 petitioners/A-1 and A-2 shall be enlarged on bail on their executing personal bond for Rs.50,000/- (Rupees fifty thousaned only) each with two sureties for a like sum each to the satisfaction of the Court of the Judicial Magistrate of First Class at Salur. On such release, the petitioners shall appear before the Station House Officer, Salur Town Police Station, Vizianagaram District once in a week i.e. on every Friday between 10.00 A.M. and 12.00 Noon till charge sheet is

filed.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

gd|-K.TataRao

RSSISTANT REGISTRAR

aw TRUE COPY!! ro SECTI N OFFICER

1. The Ju r, Salur Town Pores & yvocate [OPUC]

9. The Station Ho TH MADAPALLI 3

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5. One spare COPY

District

HIGH COURT