Chunduri Venkata Koti Sai Kumar v. The State Of Telangana

HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION No.10338 of 2021 O R D E R:

This Criminal Petition under Sections 437 and 439 Cr.P.C. is filed by petitioner - Accused No.6 in Crime No. 154 of 2021 on the file of P.S. WCO, Team-XII, CCS, Hyderabad, registered for the offences punishable under Sections 419, 409, 420, 465, 467, 468 and 471 read with Sections 34, 120(B), 201 IPC and Sections 7(A) and 13 of Prevention of Corruption Act, 1988, seeking bail. 2.

Case of the prosecution is that on 27.09.2021, at 19.30 hours, a complaint was received from Sri M. Somi Reddy, Director of Telugu Akademi stating that, pursuant to the Supreme Court directions, the Academy initiated consultation process with the counterpart - Andhra Pradesh Telugu Akademi Society and in that process, on 20.09.2021, the Akademi addressed letters to banks concerned requesting preclosure of FDs. in order to transfer the funds to A.P. Telugu Akademi branch. On 21.09.2021, original Fixed Deposit Receipts of various banks including Union Bank of India, Karwan Branch for an amount of Rs.24.20 crores have been sent through Akademi office person, Rafeeq for handing over the same to the banks concerned. Meantime, one Raj Kumar visited the Akademi, met the Accounts Officer and introduced himself as representative of Mastan Valli, who deputed to collect FDs. of Union Bank of India, Karwan Branch for closure. On knowing about Akademi's office person, Rafeeq, the said Raj Kumar

contacted and met Rafeeq on the way at BHEL main gate, Lingampally and after confirming the credentials, the Akademi person handed over him the FDs. along with covering letter. Since then, the Accounts Officer continuously was in touch with Mastan Valli and Raj Kumar for closure of FDs., but Mastan Valli every time bargained for time. As there is delay, on 24.09.2021, the Akademi sent Rafeeq to Union Bank of India, Karwan Branch where he came to know that FDs. of Akademi were closed long back. On verification of records, it was found that Akademi invested Rs.43 crores as FDs. in Union Bank of India, Karwan Branch in different intervals and still holding the original receipts of Rs.18.80 crores. As it is big scam of Rs. 43 crores, immediately, the Akademi contacted the higher officials including DGM, Regional Office, Koti and explained the matter. 3.

Learned counsel for petitioner, Sri Chundui Venkata Koti Sai Kumar, submits that petitioner was arrayed as Accused No.6 in the above crime and he was arrested and remanded to judicial custody on 05.10.2021 and from the last 104 days, he has been languishing in jail. He further submits that so far, police failed to file the charge-sheet, as such, petitioner is entitled for grant of default bail. 4.

Learned Assistant Public Prosecutor also does not dispute the fact that petitioner has been languishing in jail from the last 104 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 1 (2001)5 SCC 453

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 wellsettled 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 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) 2 2020 SCC OnLine SC 529

Cr.P.C., and petitioner is languishing in jail from the last 104 days, this Court is of the opinion that he is entitled to statutory bail, on certain conditions.

8.

The Criminal Petition is therefore, allowed. Petitioner - Accused No.6 shall be enlarged on bail in connection with Crime No.154 of 2021 on the file of P.S. WCO, Team-XII, C.C.S., 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, Hyderabad. Petitioner shall cooperate with the investigation and he shall appear before the police once in fifteen days till charge-sheet is filed.

___________________________ LALITHA KANNEGANTI, J Date: 17.01.2022 mar