Andhra Pradesh High Court - Amravati
Akula Ravi Teja Bulli, vs The State Of Andhra Pradesh,. on 20 October, 2020
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI } "
TUESDAY , THE TWENTIETH DAY OF OCTOBER
TWO THOUSAND AND TWENTY
:PRESENT:
THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
CRIMINAL PETITION NO: 4276 OF 2020
Between:
Akula Ravi Teja @ Bulli,, S/o Himagiri Babu Age 22 year,Occ Private Employee, R/o
T.F-1, Srinivas Enclave, Yanamalakuduru Karakatta, Vijayawada, Krishna District.
Petitioner/Accused No.3
AND
The State of Andhra Pradesh,., , Rep. By its Public Prosecutor, High Court at
Amaravathi Through Station House Officer, Patamata Police Station, Krishna District
Respondent/Complainant
Petition under Section 437 & 439 of Cr.P.C, praying that in the circumstances
stated in the memorandum of grounds filed in support of the Criminal Petition, the High
Court may be pleased to enlarge the petitioner on Regular Bail to the petitioner/
accused-3 in Crime No. 453/2020 on the file of Patamata Police Station of Krishna Dist,
Dated 30-05-2020 by set a side the order passed in Cri MP.NO. 1598/2020 on the file of
IV. Additional Chief Metropolitan Magistrate-cum- Additional Mahila Magistrate,
Vijayawada.
The petition/Appeal coming on for hearing, upon perusing the Petition and the
memorandum of grounds filed in support thereof and upon hearing the arguments of Sri
Challa Ajay Kumar, Advocate for the Petitioner and of Public Prosecutor for the
Respondent, the Court made the following.
ORDER
CMR, J.
Cri. P.No.4276 of 2020HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY Criminal Petition No.4276 of 2020 ORDER:
The petitioner, in this petition, assails the order dated 16.09.2020, of the IV Additional Chief Metropolitan Magistrate-
cum-Addl.Mahila Magistrate, Vijayawada, whereby she has dismissed the petition filed under Section 167(2) Cr.P.C. seeking bail on account of the default committed by the investigating agency in completing the investigation within the stipulated time.
2) The petitioner is accused No.3 in Crime No.453 of 2020 of Patamata Police Station, Krishna District.
3) A case under Sections 143, 148, 188, 269, 324, 307, 302 r/w.149 of IPC was registered in the above crime against the petitioner and the other accused in the said crime.
4) The petitioner was arrested in connection with the above crime on 04.06.2020 and he was remanded to judicial custody on 05.06.2020 and since then he has been in judicial custody. Police have filed preliminary charge-sheet in the above crime on 28.08.2020. The said charge-sheet was returned with certain objections by the learned Magistrate on the ground that the requisite copies to supply to the accused are not filed and on other technical grounds. The petitioner has filed a petition under Section 167(2) Cr.P.C. seeking default bail on the ground that police failed to complete the investigation within the stipulated period of 90 days and filed only preliminary charge-
Cri. P.N0.4276 of 2020 sheet within the prescribed time. The said petition came to be dismissed by the impugned order of the learned Magistrate on the ground that the charge-sheet was filed within the stipulated period of 90 days and it was only returned for compliance with certain technical and other objections viz., to produce all the list of documents, for filing copies of the charge-sheet to be supplied to the accused etc. and as such the petitioner is not entitled to default bail.
5) .Aggrieved by the impugned order in dismissing the petition filed claiming default bail, the petitioner is before this Court questioning the legality and validity of the impugned order.
6) Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the respondent-State.
7) Learned counsel for the petitioner would contend that a perusal of the charge-sheet itself would clearly show that the charge-sheet is only a preliminary charge-sheet and it is nota final charge-sheet as it is stated in the charge-sheet that some more material witnesses are to be examined and as such, it clearly indicates that the investigation is not completed. Therefore, the filing of the preliminary charge-sheet without completing the investigation within the stipulated time will not defeat the indefeasible right of the petitioner to claim bail under Section 167(2) Cr.P.C. for the default committed by the prosecuting agency to complete the investigation within the Cr, P.N0.4276 of 2656 statutory period of 90 days. He would contend that on account of the said default committed by the police in completing the investigation within the stipulated period, an indefeasible right to claim bail is accrued to the petitioner and the same cannot be frustrated or defeated by filing a preliminary charge-sheet. Therefore, he would finally submit that the learned Magistrate grossly erred in holding that as the preliminary charge-sheet is filed within the prescribed time and even though investigation is still pending, which is not on account of the laches of the investigating officer that the petitioner is not entitled to default bail. Therefore, he prayed for grant of bail to the petitioner.
8) Per contra, learned Additional Public Prosecutor for the respondent-State would submit that in fact that the charge- sheet was filed by the investigation officer within the stipulated period of 90 days. He submits that major part of the investigation in this case is completed which is evident from the contents of the charge-sheet. However, he submits that some of the witnesses, who are accused in the counter-case registered against them, were arrested and remanded to judicial custody and they are in jail and as such, the investigating officer could not examine them and he also submits that some of the witnesses, who are also accused in the counter-case, are absconding and as such, the investigation officer could: not examine them also in the said circumstances. Therefore, he submits that in the said circumstances a preliminary charge-
sheet is filed stating the above facts. He then contends that Cri. P.No.4276 of 2030 although the said charge-sheet was returned with certain technical objections for filing copies of the accused and other documents etc., the same will not confer any right on the accused to claim default bail under Section 167(2) Cr.P.C. as the charge-sheet was already filed in this case within the stipulated period of 90 days. He would submit that when major part of the investigation is completed, the mere nomenclature mentioned in the charge-sheet that it is a preliminary charge- sheet as some more witnesses are yet to be examined, who are absconding and who are in judicial custody, will not by itself make it as a preliminary charge-sheet and it is to be construed as a final charge-sheet as the learned Magistrate can take cognizance of the case on the basis of the said charge-sheet. So, he would submit that the moment the charge-sheet is filed, the accused loses their right to claim default bail under Section 167(2) Cr.P.C. Therefore, he strongly supports the impugned order of the learned Magistrate and prayed for dismissal of the Criminal Petition.
9) As per prosecution version, during the intervening night of 29/30.05.2020 at about 1.00 Hour there was a free-fight between the persons of two groups, who were armed with weapons. The petitioner belongs to one such group. In the said free-fight, a person by name Thota Sandeep was attacked with deadly weapons and he was brutally killed in the said attack. Persons from both the groups sustained injuries in the said fight. Therefore, two crimes relating to the said incident Cri, P.No.4276 of 2020 were registered. Crime No.453 of 2020 of Patamata. Police Station was registered for the offences under Sections 143, 148, 188, 269, 324, 307, 302 r/w.149 of IPC. The petitioner is accused No.3 in the above crime. It is stated that accused Nos.1 to 6 attacked the deceased in the said crime with deadly weapons and committed his brutal murder. Therefore, the petitioner who is one of the assailants is liable for punishment under Section 302 of IPC and also for other offences. Another crime in Crime No.457 of 2020 was registered against the persons of the opposite group for the offences under Sections 341, 307, 451, 120-B r/w.34 of IPC.
10) The petitioner herein, who is accused No.3, was arrested in connection with the above Crime No.453 of 2020 which was registered for the offence under Section 302 of IPC and other sections of law on 04.06.2020 and he was remanded to judicial custody on 05.06.2020 and since then he has been languishing in jail. Since the aforesaid crime was registered for the offence of murder punishable under Section 302 of IPC also, under Section 167 Cr.P.C, police have to complete their investigation within a period of 90 days from the date of arrest of the accused and file charge-sheet in the Court. Police have filed the charge- sheet in the present crime on 28.08.2020. The said period of 90 days, if reckoned from the date of arrest of the accused i.e. 04.06.2020 would be completed by 03.09.2020. So; the investigation is to be completed and charge-sheet is to be filed on or before 03.09.2020. Both the learned counsel for the Cr. P.N0.4276 of 2020 pétitioner and the learned Additional Public Prosecutor would submit that the charge-sheet was filed on 28.08.2020. Therefore, the date of filing the charge-sheet is not in controversy. So, it is now evident that charge-sheet was filed within the stipulated period of 90 days.
11) However, the said charge-sheet was returned by the learned Magistrate with certain objections for filing list of documents, and for filing copies of charge-sheet for supplying the same to the accused and for not filing the statements of witnesses recorded under Section 164 Cr.P.C. etc. Thereafter, the petitioner has filed a petition under Section 167(2) Cr.P.C. before the learned Magistrate on 04.09.2020 seeking default bail on the ground that the police have failed to complete the investigation within the stipulated period of 90 days and to file charge-sheet within the said period. It is the specific case of the petitioner that only a skeleton charge-sheet was filed and as such, it is not a final charge-sheet and it will not defeat the right of the accused to claim for default bail. It is also the case of the petitioner that the charge-sheet that was filed on 28.08.2020 is only a preliminary charge-sheet and it is not a final charge-sheet, which indicates that the investigation is not fully completed and as such, the accused is entitled to default bail under proviso (a) to Section 167(2) Cr.P.C.
12) The learned Magistrate while dismissing the petition, held that when the charge-sheet is filed within the prescribed time and "when the same was returned with some _ technical Cri. P.No.4276 of 2036 objections that the accused cannot claim for default bail. It is held that the accused can avail the benefit of default bait only when the charge-sheet is not filed within the prescribed period. He further held at para.22 of the impugned order that the learned Assistant Public Prosecutor stated that the investigation officer could not examine some of the witnesses in this crime, who are the accused in the counter-case, as they are in judicial custody and that the investigation officer has to examine some other witnesses also who are the accused; who are absconding in the said counter-case, that the said investigation is pending despite the efforts made by the investigation officer and as such, there are no laches on the part of the investigating officer in completing the investigation in the said circumstances which are beyond his control. Therefore, it is held that the petitioner is not entitled to default bail in the said facts and circumstances of the case and thereby dismissed the petition.
13) Thus, as can be seen from the impugned order, the learned Magistrate dismissed the petition primarily on two grounds. It is held that mere return of the charge-sheet that was filed within the stipulated period of 90 days on technical grounds for supply of some documents will not confer any right on the accused to claim default bail and other ground is when the investigation could not be completed by the investigation officer, in the circumstances which are beyond his control, as the other witnesses, who are to be examined, are accused in the "ss Cel. P.N0.4276 of 2020 counter-case and they are in judicial custody and some of the witnesses, who are also accused in the counter-case, are absconding and not available for examination. So, in the view of the learned Magistrate, the filing of preliminary charge-sheet in the said circumstances will not confer any right on the petitioner to claim for default bail.
14) In so far as the first ground is concerned, this Court do not find any legal flaw or infirmity in the said finding of the learned Magistrate. If a charge-sheet is filed within the stipulated period of 90 days or 60 days, as the case may be, and if the said charge-sheet is returned with some technical objections for not filing certain material documents along with the charge-sheet, as per the settled law in this regard, it will not confer any right on the accused to claim for default bail under proviso (a) to Section 167(2) Cr.P.C., because it indicates that eritiré investigation is completed and a final charge-sheet is filed within the stipulated period as contemplated under Section 167 Cr.P.C. Therefore, if the charge-sheet is only returned for complying with certain technical objections of producing copies of documents etc, the accused cannot claim the benefit of default bail in the said circumstances.
15) The Division Bench of this Court in the case of Venkatrayanakota Krishnappa Raghavendra Buvanahalli Muniyappa Nagesh Babu v. The State of A.P!, held as follows:
12009 (2) A.P.L.J. 268(HC) CMR, J.Cri. P.No.4276 of 2020
"Once the charge is filed within 90 days, but was returned for compliance of certain technical objections of not filing the scientific expert's opinion, is a proper compliance under Section 173 (2) Cr.P.C. and the same will not confer any right on the accused to seek bail, as a matter of right. Even in a case where the charge sheet is filed after 90 days, but before accused seeks bail availing the benefit under proviso to sub-section (2) of Section 167, his indefeasible right will be extinguished on filing such charge sheet."
16) Therefore, in view of the clear law enunciated in the above judgment of the Division Bench of this High Court, the finding of the learned Magistrate that mere return of the charge-sheet on the technical objections to file the documents and copies required to be furnished to the accused etc, will not confer any right on the petitioner to claim default bail under proviso (a) to Section 167(2) Cr.P.C. cannot be held to be erroneous and itis legally sustainable.
17) However, as regards the second ground on which the said petition was dismissed by the learned Magistrate is concerned, this Court is of the view that the said finding is legally unsustainable. Admittedly, the charge-sheet that was filed in the present crime is not a final charge-sheet. It is undoubtedly a preliminary charge-sheet. The investigation officer, himself has clearly stated in unequivocal terms in the charge-sheet that was filed by him that it is a preliminary charge-sheet. . It is stated by him in the charge-sheet that it is not possible for him to specify the overt acts of each and every accused till the statements of 22 crucial witnesses, who are in Central Prison, Rajahmundry, as remand prisoners in other Crime No.452 of CMR, J.
Crl. P.No.4276 of 20202020, under Section 161 Cr.P.C. are recorded, and also till the statements of 8 more crucial witnesses who are also the accused in other Crime No.452 of 2020, who are absconding, are recorded under Section 161 Cr.P.C. It is further stated by him in the charge-sheet that the unknown person, who recorded the rioting in his video and flashed it to media, has to be traced and his video instrument has to be collected and as such, he has filed the preliminary charge-sheet. The aforesaid relevant portion in the charge-sheet is extracted hereunder for better appreciation and reads thus:
"It cannot be possible to specify the overt-acts of each and every accused, till the recording of 161 Cr.P.C. statements of 22 crucial witnesses, who are in Central Prison, Rajahmundry as remand prisoners in Cr. No.452/2020; and also recording of 161 Cr.P.C. statements of 8 more crucial witnesses who are absconding for their involvement in Cr.No.452/2020.
The unknown person who video graphed the Rioting (Gang War) and flashed it to media, has to be traced and his video instrument has to collected.
" A-20, A-23, A-24 and A-27 are still absconding from date of commission o;f offence. They are to be apprehended.
Hence Preliminary Charge Sheet."
18) Therefore, from the above contents of the charge-sheet, it is now evident that the investigation is not fully completed and still 22 crucial witnesses, who are in judicial custody in connection with another crime, are yet to be examined and another 8 crucial witnesses, who are also accused in the said counter-case and are absconding, are also to be examined and the person, who has recorded the rioting in the video and flashed it to media has to be traced and the said video CMR, J.
Cri. P.No.4276 of 2020instrument has to be collected. Therefore, considering the above' contents of the charge-sheet, which are clearly mentioned by the investigating officer, this Court has absolutely no hesitation to hold that it is not a final charge-sheet and that the investigation is not fully completed and it is pending and the charge-sheet that was filed by the investigation officer in the above crime is only a preliminary charge-sheet. It is brought to the notice of this Court at the time of hearing this petition that even till today also final charge-sheet is not filed after examining the aforesaid crucial witnesses.
19) Now the crucial question that arises for determination is whether filing a preliminary charge-sheet without completing the investigation would defeat the right of the accused to claim default bail under proviso (a) to Section 167(2) Cr.P.C. In this context, it is relevant to note that the Parliament in its wisdom, considering the right of the accused to speedy investigation, stipulated period of time in proviso (a) to Section 167(2) Cr.P.C. stating that in all offences which are punishable with death or life imprisonment or with 10 years imprisonment, the investigation is to be completed within 90 days and in other offences, the investigation is to be completed within 60 days. The Code clearly envisaged that if the prosecuting agency fails to complete the investigation within the said stipulated period of time as contemplated under the Code, the accused is entitled to claim default bail. The said right conferred by the statute on the accused is an indefeasible right and he is entitled to bail as CMR, J.
Cri. P.No.4276 of 2020a matter of right on account of the default committed by the prosecuting agency in completing the investigation within the time stipulated by the statute.
20) It is significant to note that a plain reading of proviso (a) to Section 167(2) Cr.P.C. makes it manifest that what is required to claim for default bail under proviso (a) to Section 167(2) Cr.P.C. is failure on the part of the Investigating Agency to complete the investigation within the stipulated period of time.' In other words, it is the default committed by the Investigating Agency to complete the entire investigation within the stipulated time that confers right on the accused to claim for default bail. So, filing of charge-sheet is not the criteria or the actual test to be applied to decide whether the accused is entitled to default bail or not. It is relevant to note that the charge-sheet after completion of investigation will be filed to eriable the Court to take cognizance of the offence. So, the Court cannot take cognizance of the offence on the basis of a preliminary charge-sheet filed without completing the entire investigation. Therefore, the crucial aspect that needs to be ascertained to consider the claim of the accused for default bail is whether the investigation is completed within the stipulated time of 90 days or not. So, when the Investigating Agency files only preliminary charge-sheet within the said stipulated time keeping the investigation pending or without completing the investigation, it will not under any circumstances defeat the right conferred on the accused to claim for default bail. By _ CMR, J.
Cri. P.No.4276 of 2020mere filing a preliminary charge-sheet without completing the entire investigation and filing a final and full-fledged charge- sheet, the prosecuting agency cannot vanquish the indefeasible statutory right of the accused to claim for default bail.
21) The 3-Judge Bench of the Supreme Court in the case of Rakesh Kumar Paul v. State of Assam? held that right 'to personal liberty under Article 21 of the Constitution of India includes right to speedy investigation and entitlement to "default bail" where statutory period of filing charge-sheet has expired and accused has applied and is willing to furnish bail.
22) A plain reading of Section 167 Cr.P.C. makes it abundantly clear that it is not the intention of the legislation that charge-sheet is to be filed within the stipulated period. The intention of the legislation is that the investigation is to be completed within the stipulated time. Nowhere in Section 167 Cr.P.C. it is stated that the charge-sheet is to be filed within the prescribed period of time. All that it is stated in Section 167 Cr.P.C. is that the investigation is to be completed within the said stipulated period of 90 days or 60 days, as the case may be. Therefore, the Court has to see whether the investigation is completed or not while considering the plea of the accused for grant of default bail. Generally, charge-sheet will be filed only after completion of the investigation. So, when the charge- sheet is filed, it indicates that investigation is completed.
Therefore, it is in practice that when the Investigating Agency 2 (2017) 15 SCC 67 Cri. P.No.4276 of 2620 files the charge-sheet that the Courts usually presume that the investigation is completed. However, it is to be noticed that at times, even when the investigation is not fully completed that the police are in the habit of filing preliminary charge-sheet or an incomplete charge-sheet keeping some part of the investigation pending as a clever contrivance and subterfuge to prevent the accused from claiming default bail by exercising his right conferred under the Code. So, Courts must be on guard and should not fall in the trap of such trickery and tactics of the investigating agency when they only file preliminary charge- sheet without fully completing the investigation. Therefore, the real test to be applied to ascertain whether the accused is entitled to default bail or not in a given case is not to see whether the charge-sheet is filed or not. It has to be ascertained whether the entire investigation is completed or not within the stipulated period of time and whether the said charge-sheet is filed after completion of the entire investigation or not. A preliminary charge-sheet filed without completing the entire investigation cannot be allowed to serve as an impediment to come in the way of exercising the statutory right of the' accused for default bail.
23) The very contents of the charge-sheet, which are extracted above, clinchingly establishes that the investigation is not completed and many crucial witnesses are yet to be examined to prove the overt acts of the accused in this crime and some other evidence as stated by the investigating officer is still to be Cx, P.No.4276 2 2020 secured. Therefore, on account of default committed by the prosecuting agency in completing the investigation within the stipulated period of time, the petitioner acquired an indefeasible right to claim default bail under proviso (a) to Section 167(2) Cr.P.C.
24) In a petition filed under proviso (a) to Section 167(2) Cr.P.C. for grant of default bail, no discretion is vested with the Magistrate/Court to deny bail to him. In the judgment of the aforesaid 3-Judge Bench of the Apex Court, it is clearly held that no discretion is vested with the Court while granting default bail where accused satisfies the prerequisite for grant thereof. The Apex Court in another case Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi? held as follows:
"The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days."
ao, -
Therefore, the legal position is very clear that irrespective of the gravity of the offence and the nature and seriousness of the offence, the moment the accused claims bail under proviso (a) to Section 167(2) Cr.P.C. on account of the default committed by the Investigating Agency to complete the investigation within 3 (1989) 3 SCC 532 = AIR 1990 SC 71 Crl, P.N0.4276 of 2050 the stipulated time, and he is prepared to furnish bail, the Court has no other option except to grant bail to him. The very nature of right which is "indefeasible right" indicates that the said right cannot be defeated or frustrated once accrued to the accused. Even filing of preliminary charge-sheet cannot defeat the said right.
25) 'Therefore, in the considered opinion of the Court, after analysing the law on the point, it would be more in consonance with. the legislative mandate to hold that mere filing preliminary charge-sheet without completing the investigation will not defeat the indefeasible statutory right of the accused to claim for default bail. In a way the right to claim bail by a remanded accused touches the personal liberty of an _ individual guaranteed under the Constitution of India. Personal liberty is a valuable right of an individual and it is one of the cherished objects of the Indian Constitution. It can be deprived only in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. Therefore, when the law mandates that the Magistrate could authorise detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of Section 167 Cr.P.C. any further detention beyond the period when, the investigation is not completed and the final charge- sheet is not filed on completion of the entire investigation by the Investigating Agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions _* CMR, J.
Cri. P.No.4276 of 2020of the Criminal Procedure Code. Therefore, it could be violative of Article 21 of the Constitution of India.
26) Although the learned Additional Public Prosecutor vehemently argued and made his effort to convince the Court that as the crucial witnesses, who are the other accused in the counter-case, are in judicial custody and some other witnesses, who are also accused in the counter-case are also absconding that it is beyond the control of the investigating officer to examine them and to complete the investigation that there are no laches on his part and as such the petitioner cannot take advantage of the said situation and claim default bail, this Court is unable to countenance the said contention. Whatever may be the reason and whatever may be the circumstance and even when the same is beyond the control of the investigation officer, when once it is established before the Court that the investigation is not completed within the stipulated period of 90/60 days, as the case may be, no discretion is vested with the Court and if the accused claims default bail, the Court is left with no other option except to grant the same.
27) Therefore, the Criminal Petition is allowed setting aside the impugned order of the learned Magistrate. The petitiori filed by the petitioner under proviso (a) to Section 167(2) Cr.P.C. stands allowed. The petitioner is ordered to be enlarged on bail on execution of self bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties for like sum each to the Bie, Cri, P.N0.4276 of 2056 satisfaction of the IV Additional Chief Metropolitan Magistrate, Vijayawada, Krishna District. On his release, the petitioner shall 'report before the Station House Officer, Patamata Police Station, Krishna District, daily between 10.00 A.M. and 5.00 P.M. till the charge-sheet is filed in this case. The petitioner shall not make any attempt to tamper with the prosecution evidence.
Sd/- E. KAMESHWARA RAO ASSISTANT REGISTRAR TRUE COPY// BA For ASSISTANT a One CC to the Hon'ble Sri Justice Cheekati Manavendranath Roy. (For His Lord Ship's kind perusal) To NOOR WM a TVR The IV Additional Chief Metropolitan Magistrate, Vijayawada, Krishna District. The Superintendent, Central Jail, Rajahmundry, East Godavari District The Station House Officer, Patama Police Station, Krishna District Two CC to GP for Public Prosecutor , High Court of A.P. at Amaravati (OUT) One CC to Sri Challa Ajay Kumar, Advocate [OPUC] Seven (9) L.R. Copies.
One spare copy HIGH COURT CMRJ DATED:20/10/2020 ORDER CRLP.No.4276 of 2020 ALLOWED