Andhra Pradesh High Court - Amravati

Muliki Lovababu Lovaiiaju vs State Of Andhra Pradesh on 12 February, 2021

Bench: Lalitha Kanneganti

[3240]

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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

:PRESENT:

THE HONOURABLE SMT JUSTICE LALITHA KANNEGANT

 

CRIMINAL PETITION NO: 593 OF 2021

Between:
Muliki Lovababu @ Lovaraju, S/o.Jogulu, Aged 36 years, Occ: Employee in Steel Plant,
R/o. D.No.31-1-1/4, Sivajinagar, Uppara Colony, Kurmannapalem, Gajuwaka,
Visakhapatnam.

...Petitioner/Accused No.2

AND

State of Andhra Pradesh, rep.by Station House officer, Duvvada P.S, Through Public

Prosecutor.
...Respondent

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 connection with Cr.No.718/2020 of Duvwvada

Police Station Visakhapatnam.

The petition coming on for hearing, upon perusing the Petition and memorandum
of grounds of criminal petition and upon hearing the arguments of Sri V.V.Satish,
Advocate for the Petitioner and Public Prosecutor for the Respondent, the Court made

the following.

ORDER:

_ HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

Criminal Petition No.593 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.2 'in connection with Crime No.718 of 2090 of | Duvvada Police Station, Visakhapatnam District, registered for the offences punishable under Sections 386, 506, 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 himself and the petitioner are employees of Steel Plant. He came to know that the petitioner 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 the petitioner for threatening him to grab the property and the police registered the case and arrested him. 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 the petitioner took him to Amrutha Vilas, where he and Duvwvada Santhosh demanded cheque of Rs.2,20,000/-, for returning his signed papers, otherwise, they will kill him and his

stesso

gees E88

9 bo LK, J

CRLP.No.593 of 2021

family members. Out of fear, he handed over a cheque dated 05.12.2020. Further, they took his mobile forcibly and removed the phone calls. All through, they threatened him with dire consequences to kill him and family members, if the de facto complainant is not paying any amount whatsoever they demanded. Basing on the said complaint, the present crime is

registered and the petitioner is arrayed as A.2.

3. Heard Sri V.V. Satish, learned counsel for the petitioner

and the learned Public Prosecutor for the respondent-State.

4. Learned counsel for the petitioner submits that the petitioner is arrayed as A-2 and he is unconnected with the alleged offence and the petitioner belongs to same locality and he has been falsely implicated in the case. He submits that the allegations against the petitioner are trivial and the substantial portion of investigation has already been completed. The petitioner is languishing in jail since 08.12.2020. He further submits that since the petitioner is languishing in jail for last 65 days, he is entitled for default bail. He submits that even after lapse of 60 days, the police failed to file charge sheet within the statutory period. He 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 for statutory bail.

5. On the other hand, learned Public Prosecutor submits that the petitioner is a habitual offender and in fact he is a rowdy sheeter. He submits that the investigation is still pending

and only three witnesses were examined and at this stage, if the

3 ' LK, J

CRLP.No.593 of 2021

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;

(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 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 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 ",

beeen)

4 ' LK,J CRLP.No.593 of 2021

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.

Additionally, it is well settled that in case of any ambiguity in

corms

1 (2001)5 SCC 453 --_--

? 2020 SCC OnLine SC 529

5 LK, J CRLP.No.593 of 2021 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. 2 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.2 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/-V. Diwakar ASSISTA Ty RE STRAR

[TRUE COPY// SECTION FFICER

For ASSId PPares . .

OaRwon>

The VIII Additional Chief Metropolitan Magistrate, Gajuwaka, Visakhapatnam. The Superintendent, Central Prison, Visakhapatnam.

The Station House officer, Duvvada Police Station, Visakhapatnam.

One CC to Sri. V.V.Satish, Advocate [OPUC]

Two CCs to Public Prosecutor, High Court of AP [OUT] One spare copy

HIGH COURT

LKJ

DATED:12/02/2021