Andhra Pradesh High Court - Amravati

Padi Santhosh Kumar Padi Santhosh ... vs The State Of Andhra Pradesh on 4 March, 2021

Bench: Lalitha Kanneganti

tPF

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAW)

THURSDAY, THE FOURTH DAY OF MARCH
TWO THOUSAND AND TWENTY ONE

:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO: 1222 OF 2021
Between:

Padi Santhosh Kumar @ Padi Santhosh @ Duvwvada Santhosh, S/o.
Padmanabham, Aged 32 years, R/o. Lakshmipuram Colony, RH Colony,
Vadlapudi, Gajuwaka, Visakhapatnam.

.. Petitioner
AND
The State of Andhra Pradesh, 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 of 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 Sarvabhouma 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.1222 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-1 in connection with Crime No.718 of 2020 of Duvvada Police Station, Visakhapatnam District, registered for the offences punishable under Sections 386, 506, 120-B read with Section 34 of the Indian Penal Code, 1860 (for brevity "IPC") and Section 25 of the

Arms Act, 1959.

2. The case of prosecution is that the petitioner, who is A.1, was offered Rs.40,00,000/- by A.2 for the purpose of killing the de facto complainant. It is alleged that A.2 proclaimed that he would kill the complainant after he was arrested in another criminal case filed by one Prabhat Kumar, which A.2 believed to be at the insistence of the de facto complainant. On 11.1 1.2020 at about 6.00P.M., the complainant, on the demand and threat of A.l and others, paid an amount of rs.5,00,000/- to A.1. It is further alleged that an amount of Rs.2,00,000 /- and Rs.40,000/- were paid to A.1 and others on threat and the de facto complainant made to sign on blank stamp papers and promissory notes by A.1 and A.2 by threatening him with a pistol and extract from him a cheque for Rs.2,20,000/- forcibly. Basing on the complaint given by the de facto complainant, the

present crime is registered and the petitioner is arrayed as A-1.

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CRLP.No.1222 of 2021

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 has not committed any offence and he has been falsely implicated in the case. He submits that on the complaint given by the de facto complainant, the petitioner is arrayed as A.1 and there is nothing to connect the petitioner to the crime. He further submits that the petitioner was arrested on 09.12.2020 and remanded to judicial custody and he has been languishing in jail for more than 60 days and the police failed to file charge sheet, as such, he is entitled for default bail. He further submits that A.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. On the other hand, learned Public Prosecutor submits that there are specific overt acts against the petitioner and the petitioner is the person who is indulging in extracting money

from the innocent people, as such he is not entitled for bail.

6. Admittedly, in this case, the period of 60 days elapsed and the police have not filed charge sheet.

7. 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 trv the case or commit it for trial, and

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CRLP.No.1222 of 2021

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;

(ii) 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;

(cq) 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 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.'

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

' (2001)5 SCC 453

4 Lk, J ie

CRLP.No.1222 of 2021 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 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.

? 2020 SCC OnLine SC 529

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9. Taking into consideration the factors that A-2 and A-4 are already enlarged on pail and 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.1 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 VIIl Additional Chief Metropolitan Magistrate, Gajuwaka, Visakhapatnam. However, the petitioner/ A.1 shall cooperate 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/- A. Surya Prakasa

DEPUTY We JITRUE COPY// SECTION OFFICER To, cet

The Vill Addi.,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 CCs to Public Prosecutor, High Court of AP [OUT]

One spare copy.

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HIGH COURT

LK,J

DATED:04/03/2021