Andhra Pradesh High Court - Amravati

Tyada Bhargavi vs The State Of Andhra Pradesh on 8 February, 2021

Bench: Lalitha Kanneganti

 

MONDAY, THE EIGHTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY ONE

 

:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO: 380 OF 2021
Between:
Tyada Bhargavi, W/o Santhosh Kumar, Aged about 26 years, Caste Patnaik,
House wife, R/at LIG-31 , New APHB Colony, near Saibaba Temple Opp. Zill
Parishad, Srikakulam Town.
...Petitioner/
Accused No.1
AND
The State of Andhra Pradesh, rep. by its Public Prosecutor, High Court of
Judicature of Andhra Pradesh at Amaravati through its Station House Officer,
Bheemunipatnam P.S, Visakhapatnam District.
...Respondent

Petition under Sections 437 & 439 of Cr.P.C, praying that in the circumstances
Stated in the memorandum of grounds filed in Criminal Petition, the High Court may be
pleased to enlarge the Petitioner on Regular Bail in connection with Crime No. 482 of
2020 of Bheemunipatnam Police Station, Visakhapatnam District on such terms and
conditions.

The petition coming on for hearing, upon perusing the Petition and the
| memorandum of grounds filed in support thereof and upon hearing the arguments of Sri
P Rajkumar, Advocate for the Petitioner and of Public Prosecutor for the Respondent,
the Court made the following.

ORDER

HONOURABLE SMT. JUCTICE LALITHA KANNEGANTI

Criminal Petition No.380 of 2021 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 bail to the petitioner/A.1 in connection with Crime No.482 of 2020 of Bheemunipatnam Police Station, Visakhapatnam District, registered for the offences punishable under Sections 304 Part-II, 341 read with Section 34 of the

Indian Penal Code, 1860 (for brevity "IPC').

2. The case of prosecution is that a complaint is lodged on 10.11.2020 by the de facto complainant stating that she has been residing for the last twenty five years in Tagarapuvalasa and in the year 2016, one Tyada Bhargavi, W/o Santhosh Kumar, came to Gandhibomma Centre, Tagarapuvalasa and resided in a rented house along with her husband and two children. In the month of August, 2018, the son of de facto complainant namely Vamsikrishna was found missing and a complaint was lodged at Bheemunipatnam Police Station and that while causing enquiries, the friends of Vamsikrishna informed her that her son Vamsikrishna is having acquaintance with one Tyada Bhargavi and when police called her and asked about Vamsikrishna, Bhargavi informed that he is not with her and later in the month of August, 2020, the said Vamsikrishna returned home and that on 08.08.2020, the said Bhargavi lodged a complaint at Bheemunipatnam police station against

her son Vamsikrishna, on which the police called them and

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CRLP.No.380 of 2021

when questioned Bhargavi that her son Vamsikrishna is with her, after negotiations before the elders, Bhargavi has taken Rs.2.00 lakhs by Saying that she will not interfere with the life of her son Vamsikrishna and will lead conjugal life happily with her husband. It is further alleged that even thereafter, the said Bhargavi is visiting their house frequently and harassing them and their relatives. On 10.11.2020 afternoon at 1.50P.M., Bhargavi and four others wrongfully restrained Vamsi Krishna, beat him and tried to kidnap him in a car, due to which a scuffle took place between them and at that time the de facto complainant and her husband rushed there and rescued their son Vamsikrishna. In turn, they attacked the husband of the de facto complainant with hands and due to their attack, her husband died. Basing on the said complaint, the present crime

is registered.

3. Heard Sri P. Rajkumar, learned counsel for the petitioner/ A.l and the learned Additional Public Prosecutor for the

respondent-State.

4. Learned counsel for the petitioner submits that in the complaint, the version of the de facto complainant is that when her husband died, she was present, but in the Remand Report, it is mentioned that the maternal uncle of Vamsikrishna sent Vamsikrishna and his mother from there. He submits that the petitioner has been falsely implicated in the alleged crime. He submits that the petitioner is languishing in jail since more than

60 days and so far the police failed to file charge sheet. As such,

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CRLP.No.380 of 2021

the petitioner is entitled for statutory bail. He further submits that 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. As

such, the petitioner is entitled to statutory bail.

5. Learned Additional Public Prosecutor submits that the investigation in the crime is still in progress and the police have examined only eight witnesses. They have to examine some more witnesses. As such, at this stage, if the petitioner is enlarged on bail, she will hamper the investigation process. As such, she is not entitled for bail.

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 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-

(@)' 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;

{tt) 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- ae

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CRLP.No.380 of 2021

section shall be deemed to be so released under the Provisions of Chapter XXXII for the purposes of that Chapter, ]

(0) 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 Il.- 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 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)

' (2001)5 SCC 453 sme 7 2020 SCC OnLine SC 529

5 LK, J CRLP.No.380 of 2021 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.

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 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 her executing personal bond for Rs.20,000/- (Rupees twenty thousand only) with two sureties for a like sum each to the satisfaction of the XV Additional Metropolitan Magistrate, Bheemunipatnam. However, the petitioner/A.1 shall appear before the Station

House Officer, Bheemunipatnam Police Station, Visakhapatnam

To,

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CRLP.No.380 of 2021

District on every Saturday and Sunday between 10.00 A.M. and

12.00 P.M. till filing of the charge sheet.

| Sd/-E.KameswaraRao ASSISTA J REGISTRAR ITTRUE COPYI/ ORY |

The II Addl. Metropolitan Sessions Judge, Visakhapatnam.

The XV Addl. Metropolitan Magistrate, Bheemunipatnam, Visakhapatnam. The Superintendent, Central Prison, Visakhapatnam.