Andhra Pradesh High Court - Amravati

Katamsetty Vamsi vs The State Of Andhra Pradesh on 25 January, 2021

Bench: Lalitha Kanneganti

 

[3240]
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

MONDAY, THE TWENTY FIFTH DAY OF JANUARY,
TWO THOUSAND AND TWENTY ONE

-PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO: 167 OF 2021

 

Between:
Kalamsetty Vamsi, S/o. Ravindra Babu, Aged about 23 years, Student, R/o. Vigneswara
Colony, Podalakur Village and Mandal, SPSR Nellore District
...Petitioner
Accused No.4
AND

The State of Andhra Pradesh, Rep by its SHO, Balajinagar Police Station, SPSR
Nellore District Through Public Prosecutor, High Court Bldgts, Amaravati

... 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 / accused No.4 on bail in connection with Crime No.
578/2020 before P S Nellore VI Town, Nellore for the offences under Sections 370(A)

(2) IPC, 3(1), 4(1) 5(1)(a) PIT Act R/w. 34 IPC in the interest of justice.

The petition coming on for hearing, upon perusing the Petition and memorandum
of grounds of criminal petition and upon hearing the arguments of Sri T.Janardhan Rao,
Advocate for the Petitioner and Additional Public Prosecutor for the Respondent, the

Court made the following.

ORDER:

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO.167 of 2021 ORDER:-

This 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-4 in connection with Crime No.578 of 2020 of Nellore VI Town Police Station, Nellore, SPSR Nellore District for the offences punishable under Sections 370(A)(2) r/w 34 of Indian Penal Code, 1860 and Sections 3, 4 and 5 of Prevention of Immoral Traffic

Act, 1956.

2. The case of the prosecution is that on 24.11.2020, on receipt of credible information about running of brothel house, the police conducted raid in the house at D.No.16-8-226, 1st cross Road Ramalingapuram, Nellore and arrested the petitioner/A-4. It is alleged that A-2 along with the Accused No.1 is running a brothel house by carrying out prostitution by procuring the victims. A-2 and the petitioner/A-4 have participated in sexual exploitation of the victims. On further search, the police found Rs.18,000/-, cell phones 4 in number, Scotty bearing No.AP 26 CH 1618 and condoms 6 in number from the possession of the accused. Basing on the same, the police registered the crime, arrested the accused and remanded them

to judicial custody.

3. Heard Sri T.Janardhan Rao, learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondent-

State.

4. Learned counsel for the petitioners submits that the petitioner

is innocent of the offence alleged and even as per the averments, the

offences punishable under Sections 370(A\(2) r/w 34 IPC and Sections 3, 4 and 5 of IT (Prevention) Act are not attracted. He further submits that the petitioner is a student and is falsely implicated in this case. The petitioner is languishing in jail from more than 60 days i.e. from 94.11.2020 and so far the police have

not filed the charge sheet as such, he is entitled for statutory bail.

5. Learned Additional Public Prosecutor also does not dispute the same. However, he submits that only four (4) witnesses were |

examined and investigation is still pending.

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;

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 [- 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

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

To,

NOaARON

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., 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-4 shall be enlarged on bail on his executing personal bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties for a like sum each to the satisfaction of the Court of the V Additional Judicial Magistrate of I Class, Nellore. On such release, the petitioner shall appear before the Station House Officer, Nellore VI Town Police Station, Nellore, SPSR Nellore District, once in a week i.e. on every

Monday between 10.00 A.M. and 12.00 P.M. till charge sheet is filed.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

SD/- K.Tata Rao ASSISTANT REGISTRAR

TRUE COPY!//

The VII Additional Sessions Judge -- cum -- Special Court Against Woman, Nellore.

The V Additional Judicial Magistrate of | Class, Nellore. The Superintendent, Central Prison in Nellore.

The Station House Officer, Balaji Nagar Police Station, Nellore VI Town, Nellore

One CC to Sri. T. Janardhan Rao, Advocate [OPUC] Two CCs to Public Prosecutor, High Court of AP [OUT] One spare copy

For assistant MecaRaR

HIGH COURT

LKJ