N Lova Raju vs State Sh O
2021 Latest Caselaw 3629 AP

        THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                CRIMINAL PETITION NO.4565 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-3 to A-5 in connection with Crime No.236 of 2021

of Nallajerla Police Station, West Godavari District for the offence

punishable under Section 395 of the Indian Penal Code, 1860 (for

short 'IPC').

2.    A report was lodged by the de facto complainant wherein it was

stated that the complainant is a lorry driver and resident of

Dubacharla Village of Nallajerla Mandal and on 14.06.2021 while the

complainant along with his wife in the house watching TV, after they

had dinner, meanwhile five persons entered into his house on the

pretext of some address, immediately the said persons showed iron

rods, screw driver and pointed out them to kill if they alarming and

confined them. The petitioners along with other accused robbed the

silver things weighing about 250 grams, cash of Rs.5,000/-, two cell

phones. While the dacoit/accused escaping from the scene of

offence, the complainant and his wife try to hold them, they

threatened to kill them. On hearing hue and cry, the neighbor who is

none other than the complainant's brother's son and also other

neighbours came there and tried to catch the accused but they

escaped with robbed property on their motor cycles. While they were

escaping from the scene of offence they fallen their bags i.e. two

Aadhar cards, one iron rod, Kaki shirt, jungle cash, police belt. The
                                             2



complainant and his neighbours identified those persons. Basing on

the said report, the present crime was registered.


3.      Heard Sri B.Parameswara Rao, learned counsel for the

petitioners     and     learned      Assistant      Public     Prosecutor        for   the

respondent-State.

4. Learned counsel for the petitioners submits that the petitioners

alleged to have committed the offence under Section 395 of IPC. He

submits that though the petitioners are languishing in jail for the

last 97 days, the prosecution failed to file charge sheet, as such,

petitioners are entitled for default bail.

5. Learned Assistant Public Prosecutor submits that petitioners

are habitual offenders and they are accused in other crimes and PT

warrants were also executed in other cases as such there was delay

in completing the investigation. Now the Police are about to file

charge sheet. He submits that as the petitioners are habitual

offenders, they are not entitled for bail at this stage.

6. Heard the learned counsel on either side and perused the

material on record. Learned counsel for the petitioners submits that

though petitioners are habitual offenders and the police are about to

file charge sheet, fact remains is that so far police failed to file charge

sheet within 90 days. Though the statutory period of 90 days is

completed the petitioners are still languishing in jail from the last 97

days.

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 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 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 the charge sheet is not filed

within the statutory period of 90 days as contemplated under Section

167(2) Cr.P.C, the petitioners are entitled for statutory bail, which is

2020 SCC OnLine SC 529

an indefeasible right of the accused as laid down by the Hon'ble Apex

Court in catena of cases.

9. Accordingly, the Criminal Petition is allowed. The petitioners/

A-3 to A-5 shall be enlarged on bail in connection with Crime No.

236 of 2021 of Nallajerla Police Station, West Godavari District on

execution of self bonds for Rs.1,00,000/- (Rupees one lakh only)

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

Court of the Principal Junior Civil Judge, Jangareddy Gudem, West

Godavari District. On such release, the petitioners shall appear

before the Station House Officer, 236 of 2021 of Nallajerla Police

Station, West Godavari District twice in a week i.e. on every Monday

and Thursday between 10.00 AM and 1.00 PM till completion of trial.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

___________________________ LALITHA KANNEGANTI, J

Date: 20.09.2021 KA

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

(Allowed)

CRIMINAL PETITION No.4565 of 2020

Date: 20.09.2021

KA