Andhra Pradesh High Court - Amravati

Malineni Swaroopa Roopa vs The State Of Andhra Pradesh on 23 March, 2021

Bench: B Krishna Mohan

[ 3233 ]

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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

PRESENT:

 

Between: CSE SEO
Malineni Swaroopa @ Roopa, W/o Nagaraju, aged about 40 years,

Mukundapuram,Nawabpet, Nellore

Petitioner/Accused No. 2
AND
The State Of Andhra Pradesh, (SHO Dargamitta Police Station, Nellore District)

rep by Public Prosecutor High Court of AP.Amaravathi
Respondent/Complainant

Petition under Section 437 & 439 of Cr.P.C, praying that in the circumstances

Stated in the affidavit filed in support of the Criminal Petition, the High Court may be

| pleased to enlarge the petitioner/Accused no.2 on bail \orime No.50 of 2020 of
Dargamitta Police Station, Nellore.

The petition coming on for hearing, upon perusing the Petition and the affidavit

filed in support thereof and upon hearing the arguments of Sri Marella Radha, Advocate

for the Petitioner and the PUBLIC PROSECUTOR sHigh Court of A.P. at Amaravati. for

the Respondent/State and the Court made the following:

ORDER

HONOURABLE SRI JUSTICE B. KRISHNA MOHAN

Criminal Petition No.1302 of 2021 ORDER:

This Criminal Petition is filed under Section 437 and 439 of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.") seeking regular bail to the netitioner/A.2 in connection with Crime No.50 of 2020 of Dargamitta Police Station, Nellore, registered for the offences punishable under Sections 420 read

with 34 of the Indian Penal Code, 1860 (for short "IPC").

2. A complaint is lodged by the de facto complainant on 05.03.2020, stating that he joined in unauthorised chits conducted by the petitioner and her husband in the year 2017. For two chits for 15 months, the de facto complainant paid the monthly instalments regularly and the accused had to return the final amount of two chits to a tune of Rs.3,00,000/-. It is alleged that the complainant became the bidder of the chits for an amount of Rs.3,00,000/- and instead of paying the bid amount of Rs.3,00,000/-, they took hand loan of Rs.2,27,000/- from him and failed to pay total amount of Rs.5,27,000/- and thereby cheated the de facto complainant. Basing upon the said

report, the present crime is registered.

3. Heard Sri Marella Radha, 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 much less the alleged

offence and she has been falsely implicated in the case. He

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CRLP.No.1302 of 2021

submits that the petitioner and her husband never involved in any money circulation and in fact they are doing their respective businesses. He submits that the petitioner was arrested on 21.01.2021 and remanded to judicial custody and since then she is languishing in jail. He further submits that even after completion of investigation, the police failed to file charge sheet within the statutory period. The learned counsel further submits that as per Section 167(2) of Cr.P.C, the police have to file the charge sheet within a period of sixty days, but, in this case, the police neither filed any charge sheet nor filed any application seeking extension of time. As such, the petitioner is entitled for

statutory bail.

5. On the other hand, learned Public Prosecutor submits that the investigation in this case is still pending and the charge sheet is yet to be filed. As such, the petitioner is not entitled for grant of default bail.

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,-

fe<0.

eet

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CRLP.No.1302 of 2021

@ 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;]

(0) 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 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."

7. The Hon'ble Apex Court in the case of Uday Mohantal

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

' (2001)5 SCC 453

4 BKM, J CRLP.No.1302 of 2021 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. T his 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 a statutory bail, which is an indefeasible right of the accused as

laid down by the Hon'ble Apex Court in catena of cases.

* 2020 SCC OnLine SC 529

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9. Accordingly, this Criminal Petition is allowed. The

petitioner/A.2 shall be enlarged on bail on her executing a

personal bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties for a like sum each to the satisfaction of the Additional Judicial Magistrate of First Class, Nellore. On such release, the petitioner/A.2 shall cooperate with the investigation and she shall appear before the Station House Officer, Dargamitta Police Station, Nellore, once in a week on every

Thursday between 10.00 A.M. and 12.00 P.M. till the charge

sheet is filed.

SD/- U.Sri Devi

ASSIST IITRUE COPY// ia "GISTRAR

To For SECTIGN OFFICER

The Additional Judicial first Class Magistrate, Nellore, Nellore District, A.P.

The Superintendent, Sub Jail, Nellore, Nellore District, A.P.

The Station House Officer, Dargamitta Police Station, Nellore District, A.P.

One CC to SRI MARELLA RADHA, Advocate [OPUC]

One CC to the PUBLIC PROSECUTOR, High Court of A.P. at Amaravati [OUT]

One spare copy

APR A RF wn