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2006 Supreme(AP) 1401
2007(1) L.S. 22
IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH : : AT HYDERABAD
Present:
The Hon’ble Mr. Justice
K.C. Bhanu
Singamala Sankara Nath ..Petitioner
Vs.
The State of A.P., ..Respondent
Crl.P.No.4997/06
Date:22-11-2006
Mr.C. Praveen Kumar, Advocate for the Petitioner.
Public Prosecutor for Respondent.
Headnote:CRIMINAL PROCEDURE CODE, Secs167 (2), 437 & 439 - INDIAN PENAL CODE, Sec420 - AP PROTECTION OF DEPOSITORS AND FINANCIAL ESTABLISHMENTS ACT, 1999, Sec5 - Complaint lodged against petitioner/ A-1, exporter of Beads chains and arrested for alleged cheating of depositors - Sessions Judge dismissed bail Application filed by petitioner on merits - Magistrate returning Application filed by petitioner u/Secs437 r/w 167 (2) of CrPC with endorsement that grant of bail
u/Sec167(2) on completion of 60 or 90 days is not automatic but subject to conditions u/Sec437 & 439 CrPC
Right under proviso (a) to Sub-sec(2) of Sec167 CrPC is indefeasible and it is enforceable by an accused only from time of default till filing of challan or charge-sheet and said proviso not control by either Sec437 or 439 CrPC - Merits of case are immaterial - Whatever may be seriousness of crime and gravity of offence, no discretion is given to Magistrate when accused files Application for grant of bail under said Section and therefore accused is entitled for bail as a matter of right
Object behind this salutary provision, proviso (a) to sub-sec(2) of Sec167 is to prevent incarceration of persons accused of offences for unduly long period without any other limit - This provision is innovation in new Code and is intended to speed up investigation so that a person accused of offence does not have to languish unnecessarily in prison facing trial
In this case Police have to file charge-sheet within 60 days - Admittedly Police not filed charge-sheet as on today - Petitioner is entitled for bail as a matter of right - Criminal petition, allowed
This Criminal Petition is filed under Sections 437 and 439 Cr.P.C. for grant of bail to the petitioner/A.1 in crime no. 175 of 2006 of III Town police station, Nellore registered for the offences under Sections 420 I.P.C. and 5 of the A.P. Protection of Depositors and Financial Establishments Act, 1999.
2. The brief facts that are necessary for disposal of this Criminal Petition may be stated as follows:
It is alleged that A.1 started a company in the name and style of “Queen Trading Company Private Limited on 18.03.2006 with the assistance of A.2 to A.5. The accused purported himself as an exporter of beads chains and offered good remunerative workk i.e. knitting chains, promising the customers to pay Rs.50/ - per KG of beads supplied by A.1. The accused asked the customers to deposit Rs.2,000/- for every KG of beads towards caution deposit. It is further alleged that the public deposited money towards caution deposit and took beads/pearls at their allotted ratio. It is alleged that totally an amount of Rs.97,300/- was taken as deposit from various persons and later the accused shut down the business and evaded to return the deposit amounts to the concerned persons.
Basing on the complaint lodged by one G.Narayanamma, police registered the case. The petitioner was arrested on 19.08.2006 and since then he has been in judicial custody. The bail application Crl.M.P. No. 1452 of 2006 on the file of the Sessions Judge, Nellore, was dismissed by the learned Sessions Judge on merits by Order dated 03.11.2006. Thereafter, the petitioner filed a petition under Sections 437 read with 167(2) Cr.P.C. before the learned II Additional Judicial Magistrate of First Class, Nellore. But, the same was returned with endorsement dated 19.10.2006 that as a circular was issued by District & Sessions Judge, Nellore to all Judicial Officers drawing their attention to a judgment reported in 2005(l) ALD (Crl.) 874 that grant of bail under Sec.167(2) on completion of 60 or 90 days is not automatic but subject to conditions under Sec.437 & 439 Cr.P.C. Challenging the same, the present petition is filed stating that the petitioner is willing to furnish suitable surety and abide by the conditions imposed by the Court.
3. The learned counsel Sri C.Padmanabha Reddy appearing for the petitioner contended that since the offences alleged against the present petitioner are not punishable with either death or imprisonment for life, police have to file charge sheet within 60 days; that as on today, police have not filed charge sheet; that on failure to file charge sheet within the prescribed time as contemplated under proviso (a) to Sub-section (2) of Section 167 Cr.P.C., the petitioner is entitled to bail as a matter of right; that the decision in BUKKE RANUKA & OTHERS V. STATE OF A.P.(1) is per incuriam in view of the decision rendered by the Apex Court in WAY MOHANLAL ACHARYA V. STATE OF MAHARASHTRA(2) hence, he prays to grant bail to the petitioner. The learned Public Prosecutor opposed the same.
4. Now, the short question that falls for consideration is whether the petitioner is entitled to be released on bail under proviso (a) to sub-section (2) of Section 167 Cr.P.C.?
5. Proviso (a) to sub-section (2) of Section 167 Cr.P.C. reads as follows:
Provided that -
(a) 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
