Andhra Pradesh High Court - Amravati

Pasampalli Pedda Kullayappa ... vs The State Of Andhra Pradesh, on 20 January, 2021

Bench: Lalitha Kanneganti

 

   
 
 

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVA 1 x
WEDNESDAY, THE TWENTIETH DAY OF JANUARY.
TWO THOUSAND AND TWENTY ONE 4
\ :
'PRESENT: '
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANT
CRIMINAL PETITION NO: 6099 OF 2020
Between:

4. Pasampalli Pedda Kullayappa @ Gugudu Pedda Kullaiswamy, S/o. Kasim, aged
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 District
Petitioners/Accused Nos 1 & 2

AND
The State of Andhra Pradesh, Rep. by the Station House Officer, Jammalamadugu
Urban 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.506/2020 of Jammalamadugu (Urban) 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.6099 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.506 of 2020 of Jammalamadugu Urban Police Station, YSR Kadapa District, registered for the offences punishable under Sections 420, 468 and 471 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 07.09.2020 by the de facto complainant, who is working as Assistant Manager in Canara Bank, Regional Office, Kadapa, stating that a fraud was committed by the petitioners in collusion with the officers of M/s.CNX Corporation Ltd., Mumbai and they issued receipts to bogus third parties who have not stored any stocks against the stocks deposited by the farmers. It is further stated that when the prices of Bengal Gram grown up, the petitioners in collusion with the collateral manager of M/s.CNX Corporation Ltd., Mumbai lifted the produces pledged by the genuine farmers without the knowledge of the branch. Later he came to know that the petitioners in collusion with the other officers, sold away the Bengal gram stock and thereby cheated the complainant and some other farmers. Therefore, the de facto complainant lodged the complaint. Basing on the same, the police registered the present

crime.

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 1% petitioner is the owner of the Warehouse Godown and the 2n4 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 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, -

@ 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;

{tt} 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 AXXILT for the purposes of that Chapter, ]

(6) 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 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,j.?

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

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

' (2001)5 SCC 453 a

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 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.

2.2020 SCC OnLine SC 529

in "ced

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.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 shal] appear before the Station House Officer, Jammalamadugu 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 .

nnn REGISTRAR va

SECTION OFFICER [ITRUE COPYI/

@ VISIMCT To Class, Jammalamadugu, YSR Kadap

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1. The Judicial Magis _

2. The Superintendent, Central Prison, Kadapa, YSR Kadapa

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4. Two CCs to Public Prosecutor, High Court of A.P., at Amaravti (