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Andhra Pradesh High Court - Amravati

Konduri Sridhar vs The State Of Andhrapradesh on 15 July, 2020

Author: Cheekati Manavendranath Roy

Bench: Cheekati Manavendranath Roy

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
WEDNESDAY, THE FIFTEENTH DAY OF JULY,
TWO THOUSAND AND TWENTY
:PRESENT:
THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
CRIMINAL PETITION NO: 2458 OF 2020

 

Between:
Konduri Sridhar, S/o Krishna Murthy, Aged 42 years, Business, Kamavarapu Kota (V) &
(M), West Godavari District.
..-Petitioner/Accused
AND

The State of Andhra Pradesh, Through the S.H.O., of Tadikalapudi P.S, West Godavari
Dist, Rep., by Public Prosecutor, A.P High Court at Amaravati
...Respondent/Complainant

Petition under Sections 437 &  of Cr.P.C, praying that in the circumstances
stated in the grounds filed in support of the Criminal Petition, the High Court may be
pleased to pass an order to enlarge the petitioner/accused on a Regular Bail in Crime
No.224/2020,dated 29.06.2020 of S.H.O of Tadikalapudi P.S., West Godavari District.

The petition coming on for hearing, upon perusing the Petition and the affidavit
filed in support thereof and upon hearing the arguments of Sri R Siva Sai Swarup,
Advocate for the Petitioner and Public Prosecutor for the Respondent, the Court made
the following.

ORDER:

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY CRIMINAL PETITION No.2458 OF 2020 ORDER:-

This petition is filed under Section 439 of the Code of Criminal Procedure, 1973, to enlarge the petitioner on bail.

2. The petitioner is the sole accused in Crime No.224 of 2020 of Tadikalapudi Police Station, West Godavari District.

3. The alleged offences against the petitioner are under Sections 188, 269, 270, 273, 328 of IPC; Section 22 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short "the COTPA") and Section 51(b) of the Disaster Management Act, 2005.

4. Briefly stated, it is the case of the prosecution that on 29.06.2020 the petitioner, who was at Sri Veerabhadra Ice Parlour, Kannavarapu Kota Village, tried to escape after seeking the police at that place. Police arrested him in the presence of the mediators and at that time they seized the banned products viz., gutka/ khainy packets from the possession of the petitioner.

Therefore, he has committed the aforesaid offences.

5. Heard learned counsel for petitioner and the learned Additional Public Prosecutor for the respondent-State.

6. Learned counsel for the petitioner would submit that as regards the offence under Section 188 of IPC is concerned, the bar under Section 195 Cr.P.C. applies, as the competent officer "

srreomanrnteemeaay 7 2 CMR, J.

has to file a private complaint before the concerned Magistrate. As regards the offence under Sections 269 and 270 of IPC are concerned, he would submit that the banned products would not come within the definition of 'food'. Regarding the offence under Sections 328 and 273 of IPC, he would submit that since the police directly registered the case, which is not permissible under law, and a complaint has to be filed before the concerned Magistrate that the present prosecution is not maintainable under law. As regards the offence under Section 22 of the COPTA is concerned, he would submit that it applies only when Section 5 of the COPTA is violated and the facts of the present case do not disclose that Section 5 of COPTA is violated. Finally, as regards Section Sl(b) of the Disaster Management Act, 2005, is concerned, he would submit that the facts of the present case do not attract the said offence.

7. Per contra, learned Additional Public Prosecutor. for the respondent-State would submit that the petitioner without moving any petition for bail before the concerned Magistrate has "directly approached this Court under Sections 439 Cr.P.C. and as such, this petition is not maintainable. According to him, the petitioner has to approach the concerned Magistrate and then on dismissal of the said petition, he has to approach the Sessions Court or the High Court under Section 439 Cr.P.C. He mainly opposed the Criminal Petition on the aforesaid technical grounds.

68. Perused the record.

3 CMR, J.

9. As regards the maintainability of this petition under Section 439 Cr.P.C. directly before the High Court, the same contention was earlier raised before this Court in Crl.P.No.1932 of 2018. This Court by its order dated 08.03.2018, after considering the judgment of the Apex Court in Sundeep Kumar Bafna v. State of Maharashtra!, wherein it is held that Section 439 Cr.P.C. does not specify that the accused has to first approach the Magistrate Court and seek bail and that the accused can directly approach the High Court and the Sessions Court for regular bail and the only pre-condition is that the person seeking bail should be in custody, observed that the petition filed under Section 439 Cr.P.C, directly before the High Court can be entertained. This Court'also considered the other judgments on which reliance is placed by the learned Public Prosecutor in the case of Gurcharan Singh v. State of (Delhi) Administration? and held that the petition under Section 439 Cr.P.C. can directly be filed before the High Court and it is maintainable. Therefore, in view of the earlier order of this Court in the above referred Criminal Petition, the technical objection raised by the learned Additional Public Prosecutor regarding maintainability of this Criminal Petition is not sustainable. Even as can be seen from Section 439 Cr.P.C., there is no express or implied bar to directly file a petition seeking bail when the accused is arrested in connection with any crime before the High Court. So, in the absence of any express or implied bar either in Section 439 Cr.P.C. or anywhere ca * Crl.Appeal No.689 of 2014, dated 27.03.2014 2 (1978) 1 SCC 118 / . 4 CMR, J.

in the Code, the petition filed seeking bail which is relating to the individual liberty of a citizen of the country, cannot be rejected purely on a technical ground as raised by the learned Additional Public Prosecutor.

10. Reverting to the facts of the case, as rightly pointed out by the learned counsel for the petitioner, as regards the offence under Section 188 of IPC is concerned, the bar under Section 195 Cr.P.C. applies to the present facts of the case as no complaint by the competent authority is filed before the concerned Magistrate as contemplated under Section 195 Cr.P.C. Similarly, the contraband that was seized in connection with this case do not come within the definition of 'food' as rightly contended by the learned counsel for the petitioner in view of the judgment of this Court rendered in Crl. Petition No.6103 of 2019 which is relied on by the learned counsel for 'the petitioner. Regarding the offence under the Disaster Management Act, 2005, is concerned, Section 60 of the said Act imposes a bar that no Court shall take cognizance of an offence under the said Act except on a complaint made by the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorized in this behalf by that Authority or Government, as the case may be. In this case, there is no complaint lodged by any of the said Authorities prescribed in Section 60 of the Act. Police have directly registered the case suo-moto. Therefore, the bar under Section 60 of the Act also applies to the present facts of the case. So, in view of the vo To, Oakwonna MM 5 CMR, J.

anomalies, which are pointed out by the learned counsel for the petitioner, as discussed supra, and as the petitioner has been in judicial custody for the last 12 days in this case, considering the judgment of this Court in Crl.P. No.6103 of 2019, dated 11.10.2019, regarding the maintainability of prosecution against the said offence, this Court is of the considered view that the petitioner is entitled to bail.

11. In the result, the Criminal Petition is allowed. The petitioner is ordered to be enlarged on bail, in the above crime, on execution of self bond for Rs.25,000/- (Rupees twenty five thousand only) with two sureties for a like sum each to the satisfaction of the Judicial Magistrate of First Class, Chintalapudi, West Godavari District. On his release, the petitioner shall report before the Station House Officer, Tadikalapudi Police Station, West Godavari District, once in a week on every Monday between 10.00 A.M. and 5.00 P.M. till the entire investigation in this case is completed and charge-

sheet is filed.

Sd/-M.Suryanadha Reddy _ ASSISTAN ISTRAR (TRUE COPY// . AH For ASSISTA ISTRAR POW rawwee we The Judicial Magistrate of First Class at Chintalapudi. The Superintendent, Sub Jail at Eluru, West Godavari District.

The Station House Officer, Tadikalapudi Police Station, West Godavari District One CC to Sri. R Siva Sai Swarup, Advocate [OPUC] Two CCs to Public Prosecutor, High Court of AP [OUT] One spare copy HIGH COURT CMRJ DATED:15/07/2020 ORDER © CRLP.No.2458 of 2020 DIRECTION Y) of ae wa