Andhra Pradesh High Court - Amravati

Kesari Bala Malikarjuna Shetty vs The State Of Andhra Pradesh on 22 January, 2021

Bench: Lalitha Kanneganti

 

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

FRIDAY, THE TWENTY SECOND DAY OF JANUARY,
TWO THOUSAND AND TWENTY ONE

 
 

PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO: 209 OF 2021 art

Between:
Kesari Bala Malikarjuna Shetty, S/o Subramanyam Shetty, Aged about 75 years,
R/o.4/445, Aravind Nagar, Kadapa, YSR Kadapa District
...Petitioner/Accused No.1
AND

The State of Andhra Pradesh, Rep. by the Station House Officer, I Town U/G Police
Station, YSR Kdapa 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 Petitioner on Bail in Crime No.369/2020 of I Town U/G Police
Station, YSR Kadapa District.

The petition coming on for hearing, upon perusing the Petition and memorandum
of grounds of criminal petition and upon hearing the arguments of M/s Sodum Anvesha,

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

the following.

ORDER:

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO. 209 OF 2021 ORDER:-

This petition is filed under Section 437 and 439 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") seeking regular bail to the petitioner/A-1 in connection with Crime No.369 of 2020 of I Town U/G Police Station, YSR Kadapa District registered for the offences punishable under Sections 406, 409 and 420 of the Indian Penal Code, 1860 (for short IPC) and Section 5 of Andhra Pradesh Protection of Depositors of Financial establishments Act,

1999 (for short APPDFE Act).

2. The case of the prosecution is that a complaint was lodged on 29.10.2020 by the de facto complainant who is retired Senior Manager of Andhra Pragathi Gramina Bank stating that the retired employees of State Bank of India have started State Bank of India Retired Employees Mutually Aided Co-operative Thrift Society Limited at Kadapa. At the time of incorporation of the said Society, accused Nos.2 to 7 acted as President, Vice President, General Secretary and also Directors. Accused No.1 is said to be the kingpin of the said Society, appointed his wife Anasuya as a Director in the Society and played main role in functioning of the society. Accused No.1 and other Board members of the Society lured all the retired employees, introduced attractive schemes, developed confidence among the retired employees and general public, as such so many persons joined in the Society and one of the members i.e. the de facto complainant remitted an amount of

Rs.69.71 lakhs in the form of term deposits and fixed deposits.

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After completion of the term, though the de facto complainant. approached the Society represented by the petitioner/A-1 and other Directors, to repay the matured amount, the accused postponed the same and gave evasive reply. Basing on the said

complaint, the crime was registered.

3. Heard Ms. Sodum Anvesha, learned counsel for the petitioner and the learned Additional Public Prosecutor for the

respondent-State.

4. Learned counsel for the petitioner submits that the petitioner has nothing to do with the society. She submits that Section 5 of the APPDFE Act has no application and further as there is no dishonest intention on the part of the petitioner, Section 420 of IPC is also not attracted. Further the complaint itself is not maintainable without making the Society as an accused, there is no entrustment of property with the petitioner. It is submitted that this Court in Crl.P.No.5539 of 2020 has granted bail to Accused Nos.2, 3 and 7. She further submits that the petitioner has been languishing in jail from the last 65 days but so far the police have not filed any charge sheet, as such, the

petitioner is entitled for statutory bail.

5. The learned Additional Public Prosecutor relied on the definition of Section 2(c) of APPDEF Act. As per Section 2(c) of the Act, "financial establishment means any person or group of individuals accepting deposit under any scheme or arrangement or in any other manner but does not include a corporation or co-

operative society owned or controlled by any State Government or

eal

Central Government or a banking company.." He submits that the petitioners' society is a private society as such Section 5 of the Act is not attracted. However, he submits that the investigation is in progress and as the petitioner who is the kingpin where misappropriation of crores of amount is involved, the petitioner is

not entitled for bail at this stage.

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,-

(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;

(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 XXXIII 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;

(©) 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 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

accused, given the ubiquitous power disparity between the

1 (2001)5 SCC 453 2 2020 SCC OnLine SC 529

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4. Thel Additional Judicial Ma

2. The Superinten

3. The Station House

4. One CC to M/s Sodum Anvesha, Advo

5. Two CCs to Public Prosecutor, High C

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 petitioner/A.1 shall be enlarged on bail on his executing personal bond for Rs.2,00,000/- (Rupees two lakhs only) with two sureties for a like sum each to the satisfaction of the First Additional Judicial Magistrate of First Class, Kadapa. On such release, the petitioner/A.1 shall appear before the Station House Officer, | Town U/G Police Station, YSR Kadapa District once in a week i.e. on every Friday between 10.00 A.M. and 12.00 P.M. till charge

sheet is filed.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

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