Andhra Pradesh High Court - Amravati

Vasa Venkateswara Gandhi Reddy ... vs State Of Ap on 2 March, 2021

Bench: Lalitha Kanneganti

 

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

TUESDAY, THE SECOND DAY OF MARCH
TWO THOUSAND AND TWENTY ONE

 

:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO: 1163 OF 2021
Between:
Vasa Venkateswara Gandhi Reddy @ Gandhi Reddy, S/o Nagireddy Prakasha
Rao, aged about 24 years, R/o D.No.9-7-295/2, Near. Optex, Sairamnagar,
Gajuwaka, Visakhapatnam.

...Petitioner/ A3
AND
The State of AP, Rep. by its Public Prosecutor, High Court of Andhra Pradesh,
Amaravathi.
.. Respondent

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 enlarge the petitioner on bail on such terms and conditions as deemed fit in
FIR No.718/2020 Under Sections 386, 506, 120(b) read with Section 34 of the Indian
Penal Code and Section 25 of the Arms Act 1959 of Duvvada Police Station,
Visakhapatnam.

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

_K Sarva Bhouma Rao, Advocate for the Petitioner and of Public Prosecutor for the
Respondent, the Court made the following.
ORDER

HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

Criminal Petition No.1163 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/A-3 in connection with Crime No.718 of 2020 of Duvvada Police' Station, Visakhapatnam District, registered for the offences punishable under Sections 386, 506, 120B read 'with Section 34 of the Indian Penal Code, 1860 (for brevity "IPC") and Section 25 of the

Arms Act.

2. 'The case of prosecution is that a complaint is lodged on 08.12.2020 by the de facto complainant, stating that himself and the petitioner are employees of Steel Plant. He came to know that the petitioner had demanded one Prabhat Kumar for selling his property to him for nominal price but he refused to do the same and the said Prabhat Kumar made a complaint against the petitioner for threatening him to grab the property and the police registered the case and arrested him. Keeping the same in mind, watching out the movements of the complainant, planned to kill him, he threatened the de facto complainant that he engaged one Duvvada Santhosh to kill him. He has narrated several incidents with regard to the money transactions between the parties in the complaint. It is stated that the petitioner took him to Amrutha Vilas, where he and

Duvvada Santhosh demanded cheque of Rs.2,20,000/-, for

returning his signed papers, otherwise, they will kill him and his family members. Out of fear, he handed over a cheque dated 05.12.2020. Further, they took his mobile forcibly and removed the phone calls. All through, they threatened him with dire | consequences to kill him and family members, if the de facto complainant is not paying any amount whatsoever they demanded. The allegation against the petitioner is that when the police went to the office of P-\Santhosh Kumar who was residing as a tenant in the house of the petitioner, the petitioner was also present there and 1st accused has confessed that he has extracted huge money from the innocent people and if the petitioner can join along with them, he will give huge amounts to him, on that he agreed to assist them. Accordingly, the said Santhosh Kumar demanded the de facto complainant to give huge amounts. Basing on the said complaint, the present crime

is registered and the petitioner is arrayed as A-3.

3. Heard Sri K.Sarvabhouma Rao, learned counsel for the petitioner and the learned Public Prosecutor for the respondent-

State.

4. Learned counsel for the petitioner submits that the petitioner is arrayed as A-3 and there is nothing to connect the petitioner to the crime. Further the petitioner was remanded on 09.12.2020 and he has been languishing in jail from the last 83 days and the police failed to file charge sheet as such he is entitled for default bail. He further submits that accused No.2

was already enlarged on bail by order dated 12.02.2021 in

Crl.P.No.593 of 2021, as such the petitioner's case may be

considered for grant of bail.

5. that there are specific overt acts against the petitioner and the petitioner is a gang member of A-1 who is indulged in extracting money from the innocent people, as such he is not entitled for

bail.

On the other hand, learned Public Prosecutor submits

Admittedly, in this case, the period of 60 days elapsed and

the police have not filed charge sheet.

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;

{t) 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 ss-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 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 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."

8. 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

(2001)5 SCC 453 .

? 9020 SCC OnLine SC 529 =

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,

9. Taking into consideration the factors that A-2 and A-4 are already enlarged. on bail and the only allegation against the petitioner is that the petitioner is present in the office of A-1, 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.

10. Accordingly, this Criminal Petition is allowed. The petitioner/A.3 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 VIII Additional Chief Metropolitan Magistrate, Gajuwaka,

Visakhapatnam. However, the petitioner/A.3 shall cooperate

DOARWNs>

with the investigation and shall not threaten the witnesses. The petitioner shall appear before the Station House Officer,

Duvvada Police Station, Visakhapatnam District twice in a

month till filing of the charge sheet.

/ Sd/-E.KameswaraRao | ASSISTANT REGI RAR

ITTRUE COPYII |

SECTION JFFICER

The VIII Addl. Chief Metropolitan Magistrate, Gajuwaka, Visakhapatnam. The Superintendent, Central Jail, Visakhapatnam.

The Station House Officer, Duvvada Police Station, Visakhapatnam. One CC to Sri. K Sarva Bhouma Rao, Advocate [OPUC]

Two C€s to Public Prosecutor, High Court of AP [OUT]

One spare copy. ,