Samrat Dhali vs The State Of Andhra Pradesh,
2021 Latest Caselaw 935 AP

 

IN THE ier un OF ANDHRA PRADESH AT AMARAVATI

_ THU SDAY, THE EIGHYCENTH DAY OF FEBRUARY oe
TWO THOUSAND AND TWENTY ONE ; .

:PRESENT:

THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

 

CRIMINAL PETITION NO: wor 2021

Between:
Samrat Dhali, S/o. Jagadish Dhali, aged about 22 years, r/o.Motipura Village,
Dineshpur Post, Udhamsingh Nag istrict, Uttarkhand State, No.111, Block

No.2, Dakshinuri, Deoli, South Delhi. wot
...Petitioner/Accused 2--

AND
The State of Andhra Pradesh, Rep. by its/*Public Prosecutor, High Court of

Judicature of Andhra Pradesh at Amaravati.
...Respondent/Complainant

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 release the petitioners on bail in Cr.No.2121 of 2020 of Anakapalli Town
Police Station on the file XI Addl. Metropolitan Magistrate Anakapalle.

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 Kakumanu Joji Amrutha Raju, Advocate for the Petitioner and of Public Prosecutor
for the Respondent, the Court made the following.

ORDER

HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

Criminal Petition No.843 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.2121 of 2020 of Anakapalli Town Police Station, Visakhapatnam District for the offences punishable under Section 25 of Arms Act and Section 385 and 506 read with

Section 34 of the Indian Penal Code, 1860 (for brevity "IPC").

2. The case of prosecution is that the petitioner and one Abhishek Bharadwaj are friends and the said Abhishek Bharadwaj used to upload videos of weapons in Youtube channel in the name of Azad group. The petitioner and Abhishek Bharadwaj and others indulged in the business. of unauthorisedly supplying weapons to the persons, who contacted them. The petitioner delivered one pistol, two magazines and twenty live rounds from Bunty Jhatt and handed over them to one Abhishek Bharadwaj and as per his instructions, the petitioner handed over the said pistol, two magazines and twenty live rounds to A.1 at Anakapalle and A.1 also made payment through Paytm to his account. The petitioner also acquainted with the facts that one Abhishek sent a threatening video to one Prasanna Kumar and demanded him to pay huge amount. Basing on the same, the present crime was registered and the petitioner was arrested and remanded to

judicial custody. oe

2 | LK, J

CRLP.No.843 of 2021

3. Heard Sri Kakumanju Joji Amrutha Raju, learned counsel for the petitioner and the learned Public Prosecutor for the

respondent-State.

4. Learned counsel for the petitioner/A.2 submits that the petitioner has been falsely implicated in the case basing on the statement of LW.1. He submits that even if the allegations of the complaint are taken on its face value, they do not attract the ingredients of Section 25 of the Arms Act and Section 385 and 506 IPC. He further submits that the petitioner is languishing in jail for the last 60 days and as per Section 167(2) of Cr.P.C, the police have to file the charge sheet within a period of sixty days, but, in this case, the police neither filed any charge sheet nor filed any application seeking extension of time. As such, the

petitioners are entitled for statutory bail.

5. Learned Additional Public Prosecutor submits that the investigation in the crime is still in progress and the police have to examine some other witnesses. He further submits that the petitioner belongs to Delhi and if he is enlarged on bail, it is very difficult for the prosecution to secure his presence during trial, as such, he may not be enlarged on 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- i

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CRLP.No.843 of 2021

([email protected])' 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;]

(®) 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

s

order authorizing detention.'

7. The Hon'ble Apex Court in the case of Uday Mohantal 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

' (2001)5 SCC 453 eee

4 LK, J CRLP.No.843 of 2021 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.

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 a statutory bail, which is an indefeasible right of the accused as

laid down by the Hon'ble Apex Court in catena of cases.

a.

--_

? 2020 SCC OnLine SC 529

LK, J

CRLP.No.843 of 2021

9. Accordingly, this Criminal Petition is allowed. The petitioner/A.2 shall be enlarged on bail on his executing personal bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties for a like sum each to the satisfaction of the Xl Additional Metropolitan Magistrate, Anakapalli, Visakhapatnam District. However, the petitioner/A.2 shall appear before the Station House Officer, Anakpalli Police Station, Visakhapatnam District, twice in a month till filing of the charge sheet and he

shall not leave the State. [Ue | Sd/-P.VenkataRamana | DEPUTY REGISTRAR SECTYON OF ITTRUE COPY// ee THON OFFICER

To,

1.

2.

3.

4.

5. 6, B

The XI Addl. Metropolitan Magistrate, Anakapalle, Visakhapatnam District. The Station House Officer, Anakapalli Town Police Station, Visakhapatnam. The Superintendent, Central Prison, Visakhapatnam.

One CC to Sri. Kakumanu Joji Amrutha Raju, Advocate [OPUC]

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

HIGH COURT

LK,J

DATED:18/02/2021

ORDER

CRLP.No.843 of 2021

DIRECTION