Pasampalli Pedda Kullayappa ... vs The State Of Andhra Pradesh
2021 Latest Caselaw 216 AP

   
  
  

IN THE HIGH COURT.OF ANDHRA PRADESH AT AMAR

WEDNESDAY, THE TWENTIETH DAY OF JANUARY, {QO
TWO THOUSAND AND TWENTY ONE SS

:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO: 6102 OF 2020
Between:

1. Pasampalli Pedda Kullayappa @ Gugudu Pedda Kullaiswamy, S/o. Kasim, aged
about 46 years, R/o.22-78-1, Nagulakatta Street, Jammmalamadugu Town and
Mandal, YSR Kadapa District

2. Pasampalli Kullaiswamy, S/o. Pedda Kullayappa @ Gugudu Pedda Kullaiswamy,
Aged 20 years, R/o.22-78-1, Nagulakatta Street, Jammmalamadugu Town and
Mandal, YSR Kadapa

Petitioners/Accused Nos 1 & 3
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 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 Petitioners on Bail in Crime No.31/2019 of Mylavaram Police Station, YSR Kadapa

District.

The petition coming on for hearing, upon perusing the Petition and memo of
grounds filed herein and upon hearing the arguments of M/s Sodum Anvesha Advocate
for the Petitioners, and of Addl. Public Prosecutor for Respondent, the Court made the

following

ORDER

HONOURABLE SMT. JUCTICE LALITHA KANNEGANTI

Criminal Petition No.6102 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.3 in connection with Crime No.31 of 2019 of Mylavaram Police Station, YSR Kadapa District, registered for the offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal

Code, 1860 (for brevity "IPC").

2. The case of the prosecution is that a complaint was lodged on 08.03.2019 by the de facto complainant, who is a farmer stating that he stored 1000 bags each bag containing 60 KGs of Bengal Gram in Gugudu Kulayaswamy Rural Warehouse Godown on 27.02.2018 and borrowed an amount of Rs.14,40,000/- from Canara Bank, Proddatur by creating security on his stock. A-6 is the Chief Manager of Canara Bank and A-7 is the Branch Manager of the concerned Branch and they sanctioned the loan and disbursed the money after physical verification of the stock. When the price of Bengal Gram grown up, he met A-6 and A-7 and sought for release of the stock so as to sell outside and to repay the loan amount. It is further stated in the complaint that A-6 and A-7 were evading the release and he came to know that A-6 and A-7 in collusion with the warehouse owners i.e. the petitioners herein along with other accused sold away the Bengal Gram stock, thereby they

cheated the complainant and some other farmers. Hence, he

lodged a complaint. Basing on the same, the police registered

the above crime.

3. Heard Sri P. Veera Reddy, learned senior counsel appearing for the petitioners/A.1 and A.3 and the learned

Additional Public Prosecutor for the respondent-State.

4, Learned senior counsel submits that the 1st petitioner is the owner of the Warehouse Godown and the 24 petitioner is young boy of 20 years and as on the date of commission of alleged offence and deposit of stock, he was a minor as such he has nothing to do with the business of the 1st petitioner. He further 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

%

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;

(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;]

(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 LL.- 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."

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 the construction of a penal statute, the Courts must favour the

interpretation which leans towards protecting the rights of the

! (2001)5 SCC 453 2.9920 SCC OnLine SC 529

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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 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 petitioners/A.1 and A.3 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.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.

Sd/-K.TataRa a a EGISTRAR

SECTION OFFICER

IITRUE COPY// To, The Judicial Magistrate of First Class, Jammalamadugu, YSR Kadapa District The Superintendent, Central Prison, Kadapa, YSR Kadapa District The Station House Officer, Mylavaram Police Station, YSR Kadapa District. Two CCs to Public Prosecutor, High Court of A.P., at Amaravati (OUT) One CC to M/s Sodum Anvesha, Advocate (OPUC)

Ont ON >

One spare copy

Skm

HIGH COURT

LK,J

DATED:20/01/2021

ORDER

CRLP.No.6102 of 2020

DIRECTION