Boddeti Nageswara Rao vs State Of Ap
2021 Latest Caselaw 802 AP

[3240]

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

  

FRIDAY, THE TWELFTH DAY OF FEBRUARY,
TWO THOUSAND AND TWENTY ONE

:PRESENT:

CRIMINAL PETITION NO: 623 OF 2021
Between:

Boddeti Nageswara Rao @ Nagesh, S/o Satyanarayana, aged about 21 years,
R/o Door No. 31-34-4, Uppara Colony, Shivaji Nagar, Kurmannapalem, Visakhapatnam.

...Petitioner/Accused No.4
AND

State of Andhra Pradesh rep by its Public Prosecutor,
High Court of Andhra Pradesh at Amaravati

..Respondent

Petition under Sections 437 & 439 of Cr.P.C, praying that in the circumstances
stated in the memo of grounds filed herein, the High Court may be pleased to enlarge
the petitioner on bail in Crime No. 718/2020 registered by the Station House Officer,

Duvvada Police Station, Visakhapatnam City on such terms and conditions.

The petition coming on for hearing, upon perusing the Petition and memo of
grounds filed herein and upon hearing the arguments of Sri P Rajkumar, Advocate for

the Petitioner, and of Public Prosecutor for Respondent, the Court made the following

ORDER:

«&

ORDER:

HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

Criminal Petition No.623 of 2021

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.4 in connection with Crime No.718 of 2020 of Duvvada _ Police Station, Visakhapatnam District, registered for the offences punishable under Sections 386, 906, 120B read with Section 34 of the Indian Penal Code, 1860 (for brevity "IPC") and Section 25. of the

Arms Act.

2. The case of prosecution is that a complaint is lodged on 08.12.2020 by the de facto complainant, stating that he was working in Steel Plant. He came to know that one Lova Raju had demanded one Prabhat Kumar for selling his property to him for nominal price but he refused to do the Same and the said Prabhat Kumar made a complaint against Lova Raju for threatening him to grab the property and the police registered the case and arrested him. The said Loa Raju, keeping the same in mind, watching out the movements of the complainant, planned to kill him, he threatened the de facto complainant that he engaged one Duvvada Santhosh to kill him. He has narrated several incidents with regard to the money transactions between the parties in the complaint. It is stated that Lova Raju taken him to Amrutha Vilas, and there Lova Raju and Duvwvada Santhosh demanded cheque of Rs.2,20,000/- for returning his Signed papers, otherwise, they will kill him and his family

members. Out of fear, he handed over a cheque dated

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CRLP.No.623 of 2021

demanded. Basing on the Said complaint, the present crime is registered and the petitioner is arrayed as A.4.

3. Heard Sri Pp. Rajkumar, learned counsel for the petitioner

and the learned Public Prosecutor for the respondent-State.

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 jis

entitled for statutory bail.

5. On the other hand, learned Public Prosecutor submits

that the investigation is still pending and only three witnesses

$y

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CRLP.No.623 of 2021

were examined and at this stage, if the petitioner is enlarged on bail, he will hamper the investigation process. As such, he is not

entitled for bail.

6. Admittedly, in this case, the period of 60 days elapsed and the police have not filed charge sheet.

7. 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;

fii) 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;].?

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CRLP.No.623 of 2021

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."

8. 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.

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

5 . LK, J CRLP.No.623 of 2021 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.

9. 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.

10. Accordingly, this Criminal Petition is allowed. The petitioner/A.4 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 VIII Additional Chief Metropolitan Magistrate, Gajuwaka, Visakhapatnam. However, the petitioner/A.4 shall cooperate with the investigation and shall not threaten the witnesses. The petitioner shall appear before the: Station House Officer, Duvvada Police Station, Visakhapatnam District twice in a

month till filing of the charge sheet.

Sd/-E.KameswaraRao ASSISTANT REGISTRAR J ITRUE COPY// Dolaw.

For SECTION OFFICER

To,

o

an

Skm

. The VIII Additional Chief Metropolitan Magistrate, Gajuwaka, Visakhapatnam,

Visakhapatnam District

The Superintendent, Central Prison, Visakhapatnam, Visakhapatnam District The Station House Officer, Duvvada Police Station, Visakhapatnam City, Visakhapatnam District

Two CCs to Public Prosecutor, High Court of Andhra Pradesh. (OUT)

One CC to Sri. P Rajkumar Advocate [OPUC]

One spare copy

HIGH COURT

LK,J

DATED:12/02/2021

ORDER

CRLP.No.623 of 2021

Noe

ss

DIRECTION

oon A . se ae Sy Ch epa rahe!