Pasampalli Kullai Swamy Chinna ... vs The State Of Andhra Pradesh
2021 Latest Caselaw 936 AP

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI A 4

THURSDAY, THE EIGHTEENTH DAY OF FEBRUARY,

 

TWO THOUSAND AND TWENTY ONE

:PRESENT: 4
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO: 829 OF 2021 _ "
Between:

Pasampalli Kullai Swamy @ Chinna Kullayappa, S/o Khasim Saheb, R/o H.No.
22-78-1, Nagulakatta Street, Jammalamadu

Petitioner/Accused No.3 _
AND

The State of Andhra Pradesh, Through Station House Officer Mylavaram Police
Station, YSR Kadapa District Rep. by Public Prosecutor, High Court of Andhra
Pradesh At Amaravathi

Respondent/Complainant_

S :
SL
Petition under Section437 & 439 of Cr.P.C, praying that in the circumstances

stated in the affidavit filed in support of the Criminal Petition, the High Court may be
pleased to release the petitioner on bail in Cr.No.90 of 2020 on the file of the Mylavaram

Police Station, YSR Kadapa District, in the interest of justice.

The petition coming on for hearing, upon perusing the Petition and the affidavit
filed in support thereof and upon hearing the arguments of Sri P. Madan Mohan Reddy,
Advocate for the Petitioner and the Public Prosecutor, High Court of AP, for the

Respondent/State and the Court made the following: _--

ORDER

Rae

HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

Criminal Petition No.829 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.3 in connection with Crime No.90 of 2020 of Mylavaram Police Station, YSR Kadapa District, registered for the offences punishable under Sections 409, 406, 420 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 25.05.2020 by the de facto complainant, who is working as Assistant Manager in M/s. ORIGO Commodities India Private Limited, stating that the 1st petitioner/A.1 constructed a warehouse Godown at Karmalavaripalle village, Mylavaram Mandal and the farmers and traders would store their commodities in the godown till they get higher prices in the market for ultimate disposal. The complainant company was appointed as collateral manager by the State Bank of India and a sister company called as M/s. ORIGO Finance Private Limited. A stock of 5193 bags of Bengal Gram stored by the farmers in the godown was pledged to company of the complainant in March-April, 2018 and loans were provided to the farmers by the complainant company and the State Bank of India on pledge of other stocks. It is alleged that a major portion of pledged stock was clandestinely removed and sold outside in connivance

with each other by all the accused and that, therefore, 4541

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| CRLP.No.829 of 2021

bags pledged to State Bank of India and 3193 bags pledged to complainant company were found missing from the premises when it was inspected in February, 2019 and that a complaint dated 12.02.2019 sent by _ the previous authorised representative was not registered. The second complaint is lodged on 23.07.2020 and on receipt of the said complaint, the

present crime is registered.

3. Heard Sri P. Madan Mohan Reddy, learned counsel for the petitioner/A.3 and the learned Additional Public Prosecutor for

the respondent-State.

4. Learned counsel submits that the petitioner is arrested on 18.11.2020 and remanded to judicial custody and so far no charge sheet is filed. As such, the petitioner is entitled for statutory bail. He further submits that the incident took place way back in the year 2019 and now at this stage the petitioner is seeking to enlarge him on bail. If the petitioner is enlarged on bail, he will not hamper with the investigation. 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, but, in this case, the police neither filed any charge sheet nor filed any application seeking extension of time. As such, the

petitioner is entitled for statutory bail.

5. Learned Additional Public Prosecutor submits that the

investigation in the crime is still in progress and the police have

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CRLP.No.829 of 2021

to examine several farmers whose stocks were sold by the accused. As such, 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. 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 of 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,-

(Gi) 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 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 II.- If any question arises whether an accused person was

produced before the Magistrate as required under paragraph (b), the

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CRLP.No.829 of 2021

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) 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

1 (2001)5 SCC 453 ? 3020 SCC OnLine SC 529

To,

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5 LK, J CRLP.No.829 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.

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. nor any application seeking extension of time is filed, 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.

9. Accordingly, this Criminal Petition is allowed. The petitioner/A.3 shall be enlarged on bail on his executing personal bond for Rs.1,00,000/- (Rupees one lakh only) with two sureties for a like sum each to the satisfaction of the Judicial Magistrate of First Class, Jammalamadugu, YSR Kadapa District. However, the petitioner/A.3 shall appear before the Station House Officer, Mylavaram Police Station, YSR Kadapa District on every Saturday and Sunday between 10.00

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

IITTRUE COPY!/

| Sd/-M.RameshBabu |

Assia oes | SECTION OFFICER

icial Fi i dugu, YSR Kadapa, A.P.7 | First Class Magistrate, Jammalama dap S The Superintendent, Central Jail, Kadapa, YSR Kadapa District, A.P.

Station House Officer, Mylavaram Ke One CC to Sri P. Madan Mohan Reddy, Advocate [OPUC]

One CC to The Public Prosecutor, High Court of AP [OPUC}-- One spare copy

Police Station, YSR Kadapa District, A.P-

LKJ

DATED:18/02/2021

ORDER

CRLP.NO.829 OF 2021

DIRECTION

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