S.Venkatesh Naik vs State Of Ap
2021 Latest Caselaw 4095 AP

     HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

              Criminal Petition No.5648 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.272 of 2021 of Madakasira Police Station,

Ananthapuramu District, registered for the offences punishable

under Sections 498A, 324, 306 read with 34 of the Indian Penal

Code, 1860.

2. The case of the petitioner is that a report was lodged by

the de facto complainant stating that the marriage of the

petitioner/A.1 with his daughter Kavithabhai was performed

about 13 years back and they blessed with two female children.

It is alleged that for the last few months, the petitioner along

with his mother-A.2 and maternal aunt-A.3 is harassing his

daughter both physically and mentally as she did not give birth

to a male child. On 04.07.2021, the petitioner/A.1 along with

other accused picked up an altercation with the deceased and

harassed her by saying that since she did not give male child,

the petitioner/A.1 is willing to marry with another girl and due

to unbearable harassment, his daughter committed suicide by

consuming pesticides and died while undergoing treatment in

Government Hosptial, Ananathapuram on 07.07.2021. Basing

on the complaint, the present crime has been registered.

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3. Heard Sri Narasimhulu, 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 never committed any offence much less the alleged

offences and he has been falsely implicated in the present case.

He submits that the petitioner is languishing in jail since from

82 days. He further submits that even after completion of

investigation, the police failed to file charge sheet within the

statutory period. 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. As such, the petitioner is entitled

to statutory bail.

5. Learned Additional Public Prosecutor submits that the

investigation in the crime is still in progress and they have to

examine some more witnesses. He does not dispute the fact that

the petitioner is languishing in jail for more than 80 days.

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) 1 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 3 LK, J

CRLP.No.5648 of 2021

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. 1 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 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

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CRLP.No.5648 of 2021

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 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.

    2020 SCC OnLine SC 529
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                                                       CRLP.No.5648 of 2021



9.    Accordingly,   this   Criminal   Petition   is    allowed.      The

petitioner/A.1 shall be released on bail in connection with Crime

No.272 of 2021 of Madakasira Police Station, Ananthapuram

District, on his executing self bond for Rs.20,000/- (Rupees

twenty thousand only) with two sureties for a like sum each to

the satisfaction of the II Additional District and Sessions Judge,

Hindupur, Ananthapuram District.

___________________________ LALITHA KANNEGANTI, J Date: 20.10.2021

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