Andhra Pradesh High Court - Amravati

Pattem Srinivasulu vs The State Of Andhra Pradesh on 7 January, 2021

Bench: Lalitha Kanneganti

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THURSDAY, THE SEVENTH DAY OF JANUARY

  
 
    

TWO THOUSAND AND TWENTY ONE [is

:PRESENT: i 2 eo ; rf :

THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTK._ Te
CRIMINAL PETITION NO: 6188 OF 2020 | <

Between:

1. Pattem Srinivasulu, S/o Krishna, Hindu, aged 45 years, R/o. D.No.3-24,
T.R.PalamGokavaram Mandal, East Godavari District.

2. Kosireddy Veerababu, S/o K.Appa Rao, Hindu, aged 29 years, Residing at
D.No.3-115-19, T.R.Palyam, Gokavaram Mandal, East Godavari District.

3. Vempa.Sridevi, W/o P.Srinivasulu, Hindu, aged 30years, Residing at
D.No.3-24, T.R.Palyam, Gokavaram Mandal, East Godavari District.

4. Shaik Khaja Hussain, S/o. Shaik Masum valli, Muslim, aged 42 years,
residing at Rudravaram Village, Jutturu post, Pamulapadu Mandal,
Kurnool District.

5. Pattern Sekhar, S/o P.Chitti Babu, Hindu, aged 24 years, residing at 3"
street, Varalakshmi colony, Hanumpeta, East Godavari District.

6. Shaik Hussain Alam, S/o Shaik Mohammad, Aged about 28 yrs, R/o
D.No.4-99, Rudravaram Village, Jutturu Post, Pamulapadu Mandal,
Kurnool District.

7. J. Ram Kumar, S/o J.Nageseara Rao, Hindu, aged 30 Years, residing at
D.No.1-139, T.R.Palyam Village, Gokavaram Mandal, East Godavari
district.

...Petitioner/Accused No.1 to 7
AND
The State of Andhra Pradesh, Rep by its Public Prosecutor, High Court of
Andhra Pradesh at Amaravati.
...Respondent/Complainant Y

Petition under Sections 437 & 439 of Cr.P.C, praying that in the
circumstances stated in the memorandum of grounds filed in Criminal Petition,
the High Court may be pleased to release the Petitioners/accused No.1 to 7 on

bail pending investigation, inquiry and trial into Crime No.571/2020 of Tiruchanur
Police Station, Chittoor District.

The petition coming on for hearing, upon perusing the Petition and the
memorandum of grounds _ filed in support thereof and upon hearing the
arguments of Sri D Purnachandra Reddy, Advocate for the Petitioners and of
Public Prosecutor for the Respondent and the Court made the following.

ORDER: :

HONOURABLE SMT. JUCTICE LALITHA KANNEGANTI

Criminal.Petition No.6188 of 2020 ORDER:

This Criminal Petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 to grant regular bail to the petitioners/A.1 to A.7 in connection with Crime No.571 of 2020 of Tiruchanur Police Station, Chittoor District, registered for the offence punishable under Section 20(b) (ii) (c) read with 8

1985.

2. The case of prosecution is that on 17.06.2020 at about 9.30 A.M., on receipt of credible information about illegal transportation of Ganja, the Sub-Inspector of Police, Tiruchanur Police Station, secured the presence of mediators, went to the scene of offence at Puthalapattu-Naidupeta National Highway near Tirupathi, conducting vehicle checking. They found the petitioners/A.1 to A.7 travelling in Maruthi Swift car followed by a lorry and the police tried to stop the vehicles and on seeing them, the petitioners tried to skulk away, and the police stopped the said vehicles and found 36 gunny bags of ganja 12064 kgs and 700 gms and seized the same from the possession of the petitioners under the cover of Panchanama, arrested and remanded the petitioners/A.1 to A.7 to judicial custody on the

same day.

3. Heard Sri D. Purnachandra Reddy, learned counsel for the

petitioners and the learned Additional Public Prosecutor for the

respondent-State.

2 LK, J

CRLP.No.6188 of 2020

4, Learned counsel for the petitioners/A.1 to A.7 submits that the petitioners were arrested on 17.06.2020 and they moved an application in Crl.M.P.No.370 of 2020 under Section 167 (2) Cr.P.C. before the Sessions Court on 15.12.2020 on which date, the police filed an application seeking extension of time for filing charge sheet. He submits that it is mandatory for the police, before filing an application seeking extension of time, to serve the same on the accused, whereas in the present case, the police filed the application on 15.12.2020, which was served on 16.12.2020. As such, by the time even they filed the application, the period of 180 days for filing charge sheet is elapsed and hence, the petitioners are entitled for statutory bail. In support of his case, learned counsel for the petitioner relied on the recent judgment of Hon'ble Apex Court in M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence'. He also relied on the judgment of the Hon'ble Supreme Court in Tofan Singh vs. State of Tamilnadu in Criminal Appeal No.152 of 2013 and batch wherein it is observed that registration of FIR basing on the confession is bad. Further as per Section 167(2) of Cr.P.C, the police have to file the charge sheet within 180 days. He submits that in this case neither they have filed any application seeking extension of time nor they have filed charge sheet. As such, the petitioner is entitled for

statutory bail.

'2020 SCC Online SC 867

3 LK, J

CRLP.No.6188 of 2020

5. Learned Additional Public Prosecutor has not disputed the fact that 180 days time is elapsed. He submits that the 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;

{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 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 II.- 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."

4 LK, J CRLP.No.6188 of 2020

7. Recently, the Hon'ble Supreme Court in M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence held that once the accused files an application for bail under the proviso to Section 167(2), he is deemed to have 'availed of' or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. It is also held that if the accused applies for bail under Section 167 (2) Cr.P.C. read with Section 36A (4) NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor. 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

? (2001)5 SCC 453

eet o aa

LK, J CRLP.No.6188 of 2020 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 the accused.

case of procedure providing for the curtailment of the liberty of

8. In view of the foregoing reasons, as the charge sheet is not filed within the statutory period of 180 days, 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 to A.7 shall be enlarged on bail on their

executing personal bond for Rs.2,00,000/- (Rupees two lakhs

only) each with two sureties for a like sum each to the é

3.9020 SCC OnLine SC 529

6 LK, J

CRLP.No.6188 of 2020

satisfaction of the V Additional Judicial Magistrate of First Class, Tirupathi. The petitioners shall appear before the Station

House Officer, Tiruchanur Police Station, once in a week till the

completion of trial.

Sd/-V.Savitramma ASSISTA REGISTRAR