Basava Upendra vs The State Of Andhra Pradesh
2021 Latest Caselaw 745 AP

[ 3240 ]
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI ~

WEDNESDAY, THE TENTH DAY OF FEBRUARY,~ ~~
TWO THOUSAND AND TWENTY ONE

'PRESENT:

 
 
   

THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI ;:;;
CRIMINAL PETITION NO: 584 OF 2021 -- 4 :

Between:

Basava Upendra, S/o Atchibabu, Age 26 years, Resident of Konada Village, ~

Pusapatirega Mandal, Vizianagaram District. te
.. .Petitioner/A.1

AND

The State of Andhra Pradesh, represented by Public Prosecutor, High Court of Andhra

Pradesh at Amaravathi.
... Respondent --

. ff
Petition under Section 437 & 439 of Cr.P.C, praying that in the circumstances

stated in the memorandum of grounds of Criminal Petition, the High Court may be
pleased to enlarge the petitioner on bail in Cr.No.228 of 2020 of Bhogapuram Police

Station, Vizianagaram District pending investigation, trial in the said case.

The petition coming on for hearing, upon perusing the Petition and the
memorandum of grounds of criminal petition and upon hearing the arguments of M/s
T.V.Sri Devi, Advocate for the Petitioner and Public Prosecutor for the Respondent, the

Court made the following.

ORDER:

ing

HONOURABLE SMT. JUCTICE LALITHA KANNEGANTI

Criminal Petition No.584 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.228 of 2020 of Bhogapuram Police Station, Visakhapatnam District, registered for the offences punishable under Sections 307, 323, 506 (2) read with Section 34 of the

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

2. A complaint is lodged on 13.11.2020 by the de facto complainant stating that her parents are having Ac.1.98 cents of land in Survey No.42-01 in Konada village, Poosapatirega Mandal, Vijayanagaram District and her mother Bollinka Ramaguruvulu wanted to sell the said land to one K. Hariprasad, and on coming to know the same, the paternal uncle Basava Achibabu of the de facto complainant and the petitioner claimed share in the said property. It is further alleged that on 13.11.2020 at about 2.00P.M. when the de facto complainant, her mother, sisters and brothers came to Sub- Registrar's office, Bhogapuram to register the said land in favour of K. Hariprasad, by that time, the petitioner, his father and brother Basava Venkatesh and another came there and raised a dispute with her younger brother Raju and beat him and on seeing the same, the de facto complainant interfered on that the petitioner grew wild and stabbed her with knife on the right side

of her stomach and when one Praveen Kumar was taking video

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CRLP.No.584 of 2021

on his cell phone, the petitioner stabbed him with knife in stomach as well as on back and they were shifted to Hospital for treatment. Basing on the said complaint, the present crime is registered. The petitioner is arrested on 14.11.2020 and

remanded to judicial custody.

3. Learned counsel for the petitioner submits that the petitioner as well as the de facto complainant are close relatives and they are having disputes with regard to family properties. He submits that the mother of the petitioner has given a complaint against the de facto complainant and the same is registered as Crime No.229 of 2020 and as a counter blast to the same, the present crime is registered. He further submits that the petitioner is languishing in jail since more than 60 days and so far the police failed to file charge sheet. 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 six witnesses. He submits that the petitioner is involved in some other crimes, but, he has not disputed the fact that the police have failed to file charge sheet. As such, at this stage, if the petitioner is enlarged on bail, he will hamper the

investigation process, and as such, he is not entitled for bail.

6.

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CRLP.No.584 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,

(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 XXXII 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 L.- 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.584 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

"ey ing

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

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The Station House Officer, One CC to Ms. T.V.Sri Devi, Advocate [OPUC] Two CCs to Public Prosecutor, High Court of AP [OUT]

One spare copy

5 LK, J CRLP.No.584 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 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, Vjayanagaram. However, on such release, the petitioner/A.1 shall appear before the Station House Officer, Bhogapuram Police Station, Vijayanagaram District on every Saturday and Sunday between 10.00 A.M. and

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

Sd/-V.Satyanarayana ASSISTANT REGISTRAR

[TRUE COPY//

For_.

The Judicial Magistrate of First Class, Vizianagaram. a The Superintendent, Sub-Jail, Vizianagaram, Vizianagaram District. _ Bhogapuram Police Station, Vizianagaram District.

SECTION OFFICER

f

HIGH COURT

LKJ oO

DATED:10/02/2021 ~~

ORDER

a CRLP.No.584 of 2021

ALLOWED