Sri Palivela Santosh Kumar Vs The State of Andhra Pradesh

Criminal Petition has been filed under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for brevity >the Cr.P.C.?)/Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity >the BNSS?), seeking to enlarge the Petitioner/Accused No.1 on bail in Crime No.352 of 2025 of Kancharapalem Police Station, Visakhapatnam District, registered against the Petitioner/Accused No.1 herein for the offences punishable under

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Sections 109(1) and 118(1) read with 3 (5) of the Bharatiya Nyaya Sanhita, 2023 (for brevity >the BNS?).

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Sri R. Siva Sai Swarup, learned counsel for the petitioner, submits that the petitioner is at an impressionable age of 23 years. He is innocent and has been falsely implicated in this case. He has not committed any offence. Petitioner is the sole breadwinner of his family and has a fixed place of abode. He has been in judicial custody for more than 64 days. He is ready to abide by any condition that this Court may impose while granting bail. The learned counsel for the petitioner has relied on the decision of the High Court of Kerala in Mohammed Sajjid v. State of Kerala¹ , and it is urged to allow the petition.

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Per contra , Ms.P. Akhila Naidu, learned Assistant Public Prosecutor, submits that there are severe allegations levelled against the petitioner. He is a rowdysheeter and has three adverse antecedents of a similar nature. It is submitted that, with an intention to kill the victim, the petitioner had attacked him in a high handed manner and caused severe injuries. The investigation is still at a progressive stage, and some more material witnesses are yet to be examined. Hence, it is urged that the bail petition be dismissed.

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As seen from the record, the petitioner/Accused No.1 attacked the victim with a broken cement sheet and caused bleeding injuries. He also attacked the mother of L.W.1. There are, in all, four injured persons. The petitioner has three adverse antecedents, namely Crime No.542 of 2020, Crime No.225 of 2023, and Crime No.6 of 2025. Although the mere pendency of criminal cases against the petitioner cannot, by itself, be a ground to deny 1 Bail Application No.910 of 2025

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bail, the investigation is still at a progressive stage. Only seven witnesses have been examined, and some more material witnesses are yet to be examined. Wound certificates are also awaited. The petitioner was arrested on 30.09.2025. He has been in judicial custody for the past 64 days only.

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In Mahammed Sajjid supra, the judgment relied upon by the learned counsel for the petitioner, it was observed that there is no much difference between the words <for a term of ten years or more= mentioned in Section 187(3)(i) of >the BNSS.,? and the words <for a term not less than ten years= mentioned in Section 167(2)(a)(i) of >the Cr.P.C?. It was further observed at para No.18, that while interpreting a stature, in cases of ambiguity, whether actual or assumed, the ambiguity must be resolved in favour of the accused persons since liberty is at stake.

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In Rakesh Kumar Paul v. State of Assam² at para No.71 it is held that a bare reading of Section 167 of >the Cr.P.C.,? it clearly indicates that if the offence is punishable with death or life imprisonment or with a minimum sentence of 10 yeas, then Section 167(2)(a)(i) will apply and the accused can apply for >default bail? only if the investigating agency does not file charge – sheet within 90 days. However, in all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to grant of >default bail? after 10 years in case charge – sheet not filed.

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At para No.16 of Mohammed Sajjid supra it is observed that the words

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<not less than= mean imprisonment should be ten years or more and would 2 (2017) 15 SCC 67

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cover only those offences for which punishment could be imprisonment for a clear period of ten years or more. However, at para No.17 of Mohammed Sajjid 1^st supra it is observed that a learned former judge of Kerala High Court in his article reported in Karala High Court cases [2025(1) KHC J-33] had observed that in the light of Section 187 (3)(ii) of >the BNSS.,? compared to Section 167(2)(a)(i) of >the Cr.P.C.,? an authoritative judgment is necessary from the Hon?ble Apex Court in the light of dictum of the Hon?ble Supreme Court in Rakesh Kumar Paul 2^nd supra.

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Section 167(2)(a)(i) of >the Cr.P.C.,? provides that detention in judicial custody may extend up to 90 days if the investigation relates to an offence punishable with death, imprisonment for life, or imprisonment for a term not less than ten years. If an offender is alleged to have committed an offence punishable under Section 109 of >the BNS.,? the Magistrate is authorized to detain him in judicial custody for a total period of 90 days, as per Section 187(3)(i) of >the BNSS?.

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Section 187(3)(i) of >the BNSS.,? provides that the Magistrate may authorize the detention of an accused person beyond the period of 15 days if satisfied that adequate grounds exist for doing so. However, no Magistrate shall authorize detention in custody under this subsection for a total period exceeding 90 days, where the investigation relates to an offence punishable with death, imprisonment for life, or imprisonment for a term of ten years or more.

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In the instant case, there is a clear allegation in the FIR and in the statements of the witnesses that the petitioner, along with the other accused, attacked the victim with an intention to kill him. Section 109(1) of >the BNS.,? is punishable with imprisonment extending up to ten years, and if hurt is caused

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to any person, the offender shall be liable to imprisonment for life or imprisonment for ten years. In the present case, with an intention to kill the defacto complainant/victim, the petitioner is alleged to have caused injuries; therefore, the prosecution is right in contending that the petitioner, if is found guilty, is liable even for imprisonment for life, hence, the provisions of Section 187(3)(i) of >the BNSS.,? would apply, and not Section 187(3)(ii) of >the BNSS?.

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Be that as it may, the investigation is yet progressive stage. Therefore, the request of the petitioner is not found convincing and reasonable at this juncture to enlarge the petitioner on bail, in view of nature and gravity of the allegations leveled against the petitioner.

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