HON’BLE Dr. JUSTICE K.G. SHANKAR Crl. Petition No.12555 of 2014 Between:
Nallapati Sivaiah .. Petitioner/A.1
AND
State of A.P., rep. by Public Prosecutor, High Court of Judicature at Hyderabad For the State of Telangana and the State of Andhra Pradesh.
.. Respondent/ Complainant ORDER:
HON’BLE Dr. JUSTICE K.G. SHANKAR Crl. Petition No.12555 of 2014 The petitioner seeks for grant of bail. He is A.1 in Crime No.40 of 2014 on the file of Narasaraopet Rural Police Station. He allegedly committed offences under Sections 147, 148, 363 and 302 IPC read with Sections 149 and 120-B, IPC as well as under Sections 25 and 27 of the Arms Act.
2. The learned counsel for the petitioner submitted that albeit the petitioner has been in jail since over 90 days, the charge sheet has not been filed, so much so, the petitioner is entitled to be enlarged on bail as a matter of right.
3. Admittedly, a charge sheet was filed by police before the Court concerned. Again, admittedly the charge sheet was returned on the ground that the documents relating to forensic medicine have not been filed along with the charge sheet. Contending that it is deemed that the charge sheet has not been filed within 90 days from the date of arrest, the learned counsel for the petitioner submitted that the petitioner, therefore, is entitled to be enlarged on bail.
4. The fundamental question in this case is whether it shall be assumed that charge sheet was deemed to have been filed or not, when it was filed prior to 90 days from the date of arrest of the petitioner but had been returned for compliance of certain objections.
5. The learned counsel for the petitioner submitted that it was held by a learned single Judge of this Court in Julakanti Brahma Reddy v. State of A.P. that in view of the proviso to Section 167 (2) Cr.P.C., the accused obtains an unconditional right when charge sheet has not been laid within 90 days from the date of arrest and that it is irrelevant whether preliminary charge sheet has filed or final charge sheet is laid but was returned with objections.
6. It is the contention of the learned counsel for the petitioner that the prosecution laid incomplete charge sheet to overcome Section 167 (2) Cr.P.C. and that the same cannot be treated as a case of filing charge sheet.
7. The learned Public Prosecutor stiffly opposed the bail petition including the contention that the charge sheet had not been filed within the statutory period of 90 days. He placed reliance upon various decisions in support of his contention. In Vinay Choudhary v. State of Delhi a learned single Judge of Delhi High Court held that once a charge sheet is laid, even if the same is returned and has not been taken cognizance of, it is deemed that the provisions under Section 167 (2) Cr.P.C. have been complied with. A Full Bench of Punjab & Haryana High Court in State of Haryana v. Mehal Singh held that if the charge sheet is laid which did not contain the report of experts, it would be considered to be a compliance of Section 167 (2) Cr.P.C. and that the accused would not be entitled to seek for bail as of right.
8. In Venkatarayanakote Krishnappa Raghavendra v. the State of A.P. relied upon by the learned Public Prosecutor, a reference was made to the Division Bench regarding the question whether the charge sheet filed within 90 days but was returned for compliance of certain technical objections should be considered to be proper compliance u/s.173 Cr.P.C. and whether such a charge sheet would confer any right on the accused to seek bail as a matter of right u/s.167 Cr.P.C. Referring to the earlier decision of this Court in Julakanti Brahma Reddy (1 supra) the Division Bench held that if the charge sheet is laid with all documents except scientific expert’s opinion, it shall be considered to be compliance of Sections 173 (2) Cr.P.C. and 167 (2) Cr.P.C. and that the accused would not be entitled to seek for grant of bail as a matter of right.
9. In view of the observations of the Division Bench of this Court, I have no alternative but to hold that as the charge sheet was filed and was returned for compliance of technical objections, it is deemed that the charge sheet was filed within 90 days from the date of arrest of the petitioner. The petitioner consequently is not entitled to seek for grant of bail as a matter of right.
10. I may, however, examine the case whether the petitioner deserves to be enlarged on bail on the merits of the case.
11. The learned Public Prosecutor submitted that the petitioner is involved as many as 11 cases including the present case and that there are as many as 5 cases pending against the petitioner for the alleged commission of offence u/s.302 IPC. The learned Public Prosecutor further submitted that one of the cases against the accused is for the offence u/s.307 IPC and that there are three other cases pending against the accused under the provisions of the Indian Arms Act.
12. In view of there being as many as 11 cases pending and where the petitioner has been involved in as many as five cases for the offences u/s.302 IPC and where serious allegations are made against the petitioner in respect of 9 cases, I consider that it is not a fit case to enlarge the petitioner on bail. I therefore see no merits in this criminal petition.
13. The Criminal Petition consequently is dismissed.
K.G. Shankar, J Date: 07.11.2014
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