Pasampalli Kullaiswamy, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 173 AP

 

 

 

[3240]

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVA DERN
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TUESDAY, THE NINETEENTH DAY OF JANUARY, US) A ne
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:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGAN Z
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CRIMINAL PETITION NO: 6009 OF 2020

Between: Qe
1. Pasampalli Kullaiswamy, S/o. Pedda Kullayappa Gugudu Pedda Kullaiswamy,
Aged 20 years, R/o.22-78-1, Nagulakatta Street, Jammmalamadugu Town &
Mandal, YSR Kadapa District
2. Pasampalli Pedda Kullayappa @ Gugudu Pedda Kullaiswamy, S/o. Kasim, aged
46 years, R/o.22-78-1, Nagulakatta Street: Jammmalamadugu Town & Mandal,
YSR Kadapa District
...Petitioner/Accused Nos. 1 & 2
AND

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

...Respondent/Complainant

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 Petitioners on Bail in Crime No.90/2020 of Mylavaram Police
Station, YSR Kadapa District, :

The petition coming on for hearing, upon perusing the Petition and memorandum

of grounds of criminal petition anaypon hearing the arguments of M/s Sodum Anvesha,
A

Advocate for the Petitioners and, Public Prosecutor for the Respondent, the Court made

the following.

ORDER:

HONOURABLE SMT. JUCTICE LALITHA KANNEGANTI

Criminal Petition No.6009 of 2020 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 petitioners/A.1 and A.2 in connection with Crime No.90 of 2020 of Mylavaram Police Station, YSR Kadapa District, registered for the offences punishable under Sections 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 Sion ne

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CRLP.No.6009 of 2020

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. Veera Reddy, learned senior counsel appearing for the petitioners/A.1 and A.2 and the learned

Additional Public Prosecutor for the respondent-State.

4. Learned senior counsel submits that the petitioners are arrested on 18.11.2020 and remanded to judicial custody and so far no charge sheet is filed. As such, the petitioners are entitled for statutory bail. He further submits that the incident took place way back in the year 2019 and now at this stage the petitioners are seeking to enlarge them on bail. If the petitioners are enlarged on bail, they never hamper the investigation. He further submits that even after completion of investigation, the police failed to file charge sheet within the statutory period. Learned senior 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 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 a oe _----

3 LK, J

CRLP.No.6009 of 2020

to examine several farmers whose stocks were sold by the accused. As such, at this stage, if the petitioners are enlarged on bail, they will hamper the investigation process. As such, they are 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 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, shail 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 IL.- If any question arises whether an accused person was

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

cones

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4 LK, J

CRLP.No.6009 of 2020

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 2.9020 SCC OnLine SC 529

eens

5 LK, J CRLP.No.6009 of 2020 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 right, 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 petitioners/A.1 and A.2 shall be enlarged on bail on their executing personal bond for Rs.1,00,000/- (Rupees one lakh only) each with two sureties for a like sum each to the satisfaction of the Judicial Magistrate of First Class, Jammalamadugu, YSR Kadapa District. However, the petitioners/A.1 and A.2 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. <

Sd/-K.TataRao ASSISTANT

REGISTRAR

IITRUE COPY// SECTION OFFICER

For

Pee,

To,

Ouakwnna

MM

The Judicial Magistrate of First Class, Jammalamadugu.

The Superintendent, Central Prison, Kadapa.

The Station House Officer, Mylavaram Police Station, YSR Kadapa District. One CC to M/s Sodum Anvesha, Advocate [OPUC] Two CCs to Public Prosecutor, High Court of AP [OUT]

One spare copy

LKJ

DATED:19/01/2021

ORDER

CRLP.No.6009 of 2020

ALLOWED

22 MAN PO?