Andhra Pradesh High Court - Amravati
Iia Siva Sankar Siva Nangu ... vs The State Of Andhra Pradesh on 30 July, 2021
Bench: Lalitha Kanneganti
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVAT! &
FRIDAY, THE THIRTIETH DAY OF JULY,
TWO THOUSAND AND TWENTY ONE
'PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
fi CRIMINAL PETITION NO: 4163 OF 2021
yotween:
la Siva Sankar @ Siva @ Nangu Sivasankara Reddy, S/o Durga Rao, Yerukala by
caste (As per Aadhar Card) originally Nangu Siva Sankara Reddy, S/o Brahma Reddy,
Akkayapalem village, Vetapalem Mandal, now at Lakshmipuram, Vetapalem Mandal,
Prakasam District.
Petitioner/Accused
AND
The State of Andhra Pradesh, Rep. by its Public Prosecutor,
High Court of A.P., at 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 release
the petitioner/accused on bail pending investigation, inquiry and trial into Crime No.89 of
2021 on the file of Karlapalem Police Station, Guntur District.
The petition coming on for hearing, upon perusing the Petition and memo of
grounds filed herein and upon hearing the arguments of Sri Vutupalli Rajanna, Advocate
for the Petitioner, and of Public Prosecutor for Respondent, the Court made the
following
ORDER
é : ,
bo
/
HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION NO.4163 OF 2021
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 petitioner/Accused in connection
'with Crime No.89 of 2021 of Karlapalem Police Station, Guntur
District, registered for the offences punishable under Sections
366, 376(3) r/w 109 of the Indian Penal Code, 1860 (for short
"IPC"}) and Section 4 r/w 3 of the Protection of Children from
Sexual Offences Act, 2012 and Sections 9 and 10 of Prohibition
of Child Marriage Act.
2. The case of the prosecution is that the victim girl is
studying 9% class and she developed acquaintance with the
petitioner, who used to visit the house of neighbour of victim
girl On 15.04.2021 at about 6.00 a.m. the victim girl went
behind their house to go to washroom, but as she did not
return, her parents went there and found the victim girl was not
there. Having suspicion on the petitioner, the mother of victim
girl lodged report.
3. Heard Sri Vutupalli Rajanna, learned counsel for the
petitioner and the learned Assistant Public Prosecutor for the
respondent-State.
4, Learned counsel for the petitioner submits that the
petitioner was arrested on 18.04.2021 and from the last 103
days, he has been languishing in jail and so far, the police have
desc:
eg eo
not filed charge sheet, as such the petitioner is entitled for
statutory bail.
o.
the fact that so far police have not filed charge sheet and the'
petitioner has been languishing in jail from the last 103 days.
6,
Learned Assistant Public Prosecutor also does not dispute
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 cornmit 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:
{i} 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. 1 Explanation I.- For
the avoidance of doubts, it is hereby declared that,
notwithstanding the expiry of the period specified in
paragraph (aj, the accused shall be detained in custody so
long as he does not furnish bail;]. 2
Explanation I.- If any question arises whether an
accused person was produced before the Magistrate as
e
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 of India. 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 filmg 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 im
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 of India, 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 arty
ambiguity in the construction of a penal statute, the Courts
'.(2001)5 SCC 453
2.9920 SCC OnLine SC 529
To,
Sk
4. The Spl. Court for Speedy
aukrond
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.
&. 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/Accused shall be enlarged on bail on his executing'
personal bond for Rs.20,000/- (Rupees twenty thousand only)
with two sureties for a like sum each to the satisfaction of the
Special Court for Speedy Trial of offense under Protection of
Children from Sexual Offences Act, 2012, Guntur. On such
release, the petitioner shall cooperate with the investigation. If
the petitioner fails to cooperate with investigation, the
prosecution is at liberty to file an application seeking
a
cancellation of bail.
SD/- SHAIK MOHD. RAFI
ASSISTANT REGISTRAR --
TRUE COPY! SECTION OFFICER
F
Trial of Offences under Protection ©
Guntur District
Offences Act 2012, Guntur, trict
Sone uperintendent District Jail, Guntur, Guntur Dis
The Station House Officer, Karlapaen '
Two CCs to Public Prosecutor, High Gou
One spare copy Hg
fAP., at Amaravathi (OUT)
€ Children from
Police Station, Guntur District.
/
HIGH COURT
LK,J
DATED :30/07/2021
ORDER
CRLP.No.4163 of 2021
CRL.P IS ALLOWED
