G. Sri Krishna v. The State Of Telangana

HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION No. 10252 of 2021 O R D E R:

This Criminal Petition under Sections 437 and 439 Cr.P.C. is filed by petitioner - Accused No.5 in Crime No.168 of 2021 on the file of Central Crime Station, Hyderabad registered for the offences punishable under Sections 406, 409, 420 r/w 34 of IPC., seeking bail.

2.

A report was lodged by de facto complainant stating that she is having Demat Account in Karvy Stock Broking Limited (KSBL) and she purchased 10,000 shares of Divis Lab Company in 1995. Till 2020 she received dividends regularly and after April, 2004 no dealings were done by her pertaining to such shares. The present market value of Divis Lab Shares is Rs.5,220/- and total value pertaining to 10,000 share is Rs.5,20,00,000/-. It is come to her notice that KSBL without her knowledge, debited 10,000 shares from her Demat account and transferred the same in trading account. Later on perusal of news caption in various newspapers regarding illegal transfer of customers' shares by KSBL, she contacted them and came to know that her shares are in the custody of ICICI Bank and the SEBI imposed restrictions on business dealings, however they assured to take steps for its release. But so far no action was initiated. Basing on the said report, the above crime was registered. 3.

Learned Senior Counsel Sri Vinod Kumar Deshpande appearing on behalf of Sri Rohit Pogula, learned counsel for petitioner submits that initially, petitioner was remanded to judicial custody on 21.09.2021 and later he was produced in this case on 30.11.2021 on

executing P.T. Warrant and ever since he is languishing in jail. He submits that this Court granted bail to the petitioner in Crl.P.Nos.8403 of 2021, 8391 of 2021 and 9135 of 2021, as the police failed to file charge sheet. He also submits that accused No.1 was released on bail by the Court below vide Crl.M.P.No.3721 of 2021 dated 06.12.2021. He submits that though the petitioner is languishing in jail from more than 90 days, police failed to file charge sheet, as such petitioner is entitled for default bail. 4.

Learned Assistant Public Prosecutor also does not dispute the fact that petitioner has been languishing in jail from the last 90 days. 5.

Section 167 (2) 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."

6.

Further, it is apt to note that the Hon'ble Apex Court in Uday Mohanlal Acharya v. State of Maharashtra1 observed that personal liberty is one of the 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 detention of 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 in conformity with the provisions of the Criminal Procedure Code, and as such, it could be violative of Article 21 of the Constitution of India. The Hon'ble Apex Court in its recent judgment in S.Kasi v. State2 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 pandemic as is prevailing now. 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 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 1 (2001)5 SCC 453 2 2020 SCC OnLine SC 529

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. 7.

In view of the foregoing reasons, without going into the merits of the matter, as prosecution failed to file charge sheet within the statutory period of 90 days, as contemplated under Section 167 (2) Cr.P.C., and petitioner is languishing in jail from the last 90 days, this Court is of the opinion that he is entitled to statutory bail. 8.

Therefore, the Criminal Petition is allowed. Petitioner - Accused No.5 shall be enlarged on bail in connection with Crime No.168 of 2021 on the file of Central Crime Station, Hyderabad on his executing a personal bond for a sum of Rs.20,000/- (Rupees twenty thousand only) with two sureties for a like sum each to the satisfaction of XII Additional Chief Metropolitan Magistrate at Nampally. ___________________________ LALITHA KANNEGANTI, J 7th January, 2021 PVD

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION No. 10252 of 2021 07.01.2022 PVD