Criminal Procedure vs Bethamcherla Police Station
2021 Latest Caselaw 3675 AP

         THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                 CRIMINAL PETITION NO.4703 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 petitioner/accused in connection with Crime No.207 of 2021,

Bethamcherla Police Station, Kurnool District registered for the

offence punishable under Section 307 of the Indian Penal Code,

1860.

2.      The case of prosecution is that a report was lodged wherein it

was alleged that the complainant previously worked under the

petitioner and since last two years he is working under Manohar,

who is elder brother of the accused. On 15.07.2021 when the

complainant along with Manohar, went to Allabhasha Durga and sat

in front of the house, the petitioner came there and attacked the

complainant with black stone due to which the complainant

sustained bleeding injury on his head and when Manohar tried to

rescue him the petitioner beat him. Basing on the said report, the

present crime is registered against the petitioner.

3.      Heard Smt. Marella Radha, learned counsel for the petitioner

and learned Additional Public Prosecutor for the respondent-State.

4. Learned counsel for the petitioner submits that the petitioner

is innocent and he is falsely implicated in the crime. She submits

that the petitioner is languishing in jail from the last seventy days

and Police failed to complete investigation and file charge sheet

within the stipulated time, as such the petitioner is entitled for

statutory bail.

5. Learned Additional Public Prosecutor does not dispute the fact

that 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) 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. 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 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

(2001)5 SCC 453

2020 SCC OnLine SC 529

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 above, as charge sheet is not filed within the

statutory period as contemplated under Section 167(2) 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.

9. Accordingly, this Criminal Petition is allowed. The

petitioner/accused shall be enlarged on bail in connection with

Crime No.207 of 2021, Bethamcherla Police Station, Kurnool District

on execution of self bond for Rs.20,000/- (Rupees twenty thousand

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

learned Judicial Magistrate of First Class, Dhone.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

___________________________ LALITHA KANNEGANTI, J

Date: 22.09.2021 ikn

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

Allowed regular

CRIMINAL PETITION No.4703 of 2021

22.09.2021

IKN