C.A.Abraham vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the accused Nos.2 & 3 in Crime No.353/2024 of the Murikkassery Police Station, Idukki, which is registered against the accused for allegedly committing the offences punishable under Sections 406 & 420 read with Section 34 of the Indian Penal Code, 1860. The petitioners were arrested and remanded to judicial custody on 03.06.2024.

The crux of the prosecution case is that: the accused, in furtherance of their common intention, had induced the de-facto complainant to transfer Rs.5,00,000/- to their bank account on the assurance of providing him an employment visa in Israel. However, the accused did not provide the visa or return the capital. Thus, the accused have committed the above offences.

Heard; Sri. Stephy K Regi, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Senior Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. There is no material to show that the petitioners have committed the above offences. The petitioners are the paid employees of the first accused. In any given case, the petitioners have been in judicial custody for the last 63 days, the investigation in the case is not complete, the offences alleged against the petitioners are punishable for a period up to 10 years, and the final report has not been laid. Hence, the petitioners are entitled to be released on statutory bail as contemplated under sub-section (2) of Section 167 of the Code. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the investigation is still in progress. She also stated that if the petitioners are let off on bail, there is every likelihood of them committing similar offences. Moreover, the petitioners are persons with criminal antecedents since they have been involved in 15 other crimes of a similar nature. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the petitioners have been in judicial custody for more than 63 days, the investigation in the case is not complete, and the final report has not been laid.

The prosecution allegation is that, the petitioners, along with the first accused, had induced the de-facto complainant to pay the money on the assurance of securing an employment visa in Israel. However, the accused did not secure the visa or return the capital. The fact remains that the petitioners have been in judicial custody for the last 62 days, the investigation in the case is not complete, the offences alleged against the petitioners are punishable for a period up to 10 years, and the final report has not been laid.

Subsection (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:-

Procedure when investigation cannot be completed in twenty-four hours.—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is wellfounded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that— 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in 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 authorise 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 he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]

A three-Judge Bench of the Honourable Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra [(2001) 5 SCC 453], reiterated the legal proposition  in  Sanjay Dutt v.State through C.B.I., Bombay (supra). In paragraph 13 (3) it was opined thus:

"13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.”

(emphasis added)

In the instant case, as the petitioners have been in judicial custody for the last 63 days, the investigation in the case is not complete, and the final report has not been laid, I am satisfied that the petitioners are entitled to be released on statutory bail since it is their indefeasible right under Section 167(2) of the Code. Hence, I allow the bail application.

In the result, the application  is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) each with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer as and when required;

(ii) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii)The  petitioners  shall  not  commit  any  offence while they are on bail;

(iv) The petitioners shall surrender their passports, if any, before the court below within ten days from today. If they have no passports, they shall file affidavits to the effect before the court below 10 days from today;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and Another [2020 (1) KHC 663].