Kunchala Anil vs State Of Andhra Pradesh
2021 Latest Caselaw 3897 AP

        THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                CRIMINAL PETITION NO.5456 of 2021

ORDER:-

      This 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 petitioners/A-1 and A-2 in connection with Crime No.42 of 2021

of Ongole Police Station, GRP Guntakal District, under Section 174

of Criminal Procedure Code 1973.

2.    The case of the prosecution in brief is that on 24.07.2021, the

de facto complainant working as Station Master at Ongole Railway

Station lodged a report alleging that on the intervening night of

23/24-07-2021 at about 2:30 hours, he received information from

one Tumma Naga Raju who is the night duty patrolling man in

between Ongole and Karavadi Railway Stations, who stated that

while he was in duty, he found two unknown dead bodies at the

railway track. Basing on the same the present case is registered.


3.    Heard Sri V. Siva Prasad Reddy, learned counsel for the

petitioners   and     learned   Additional Public   Prosecutor   for   the

respondent-State.

4. Learned counsel for the petitioner submits that the petitioenrs

are languishing in jail for the last 64 days and the police failed to file

charge sheet. Hence, the petitioners are entitled for default bail.

5. Learned Assistant Public Prosecutor does not dispute the fact

that the petitioners are languishing in jail for 64 days and charge

sheet is not filed.

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;

(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 XXXIII 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 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;]. 2 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 Mohanlal

Acharya v.State of Maharashtra1 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

(2001)5 SCC 453

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. State2 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.

8. In view of the foregoing reasons as no charge sheet is filed

within the statutory period and so far there is nothing forthcoming to

show that the petitioners are habitual offenders, the petitioners are

2020 SCC OnLine SC 529

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 petitioners/

A-1 and A-2 shall be enlarged on bail in connection with Crime

No.42 of 2021 of Ongole Police Station, GRP Guntakal District on

executing self bond for Rs.20,000/- (Rupees twenty thousand only)

each with two sureties each for a like sum each to the satisfaction of

the Court of the Special Judicial Magistrate of First Class for

Railways, Nellore, SPSR Nellore District.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

___________________________ LALITHA KANNEGANTI, J

Date: 04.10.2021 EPS

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

(Allowed)

CRIMINAL PETITION No.5456 of 2021

Date: 04.10.2021

EPS