Sanoop Alias Ratheesh vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.612/2023 registered by the Aluva West Police Station (Alangad), Ernakulam, registered against the accused (2 in number) for allegedly committing the offences punishable under Sections 457, 380, 361 r/w. 34 of the Indian Penal Code. The petitioner was arrested on 01.12.2023 and was remanded to judicial custody on 02.12.2023.

The essence of the prosecution case is that: around 3.30 a.m on 01.12.2023, the accused had trespassed into the house of a lady named Menachery Mary Varghese, where the defacto-complainant was working as a caretaker, and robbed Rs.1,000/- from the drawer. Thus, the accused have committed the above offences.

Heard Sri.Aneesh K.R., the learned counsel appearing for the petitioner and Smt.Seetha S, the learned Public Prosecutor appearing for the respondents.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime. The petitioner is the sole breadwinner of his family. The petitioner is willing to abide by any condition that may be imposed by this Court. Notwithstanding the other contentions raised in the bail application, the offences alleged against the petitioner are all punishable for a period of less than ten years as contemplated under sub-section (2) of Section 167 of the Code of Criminal Procedure ('Code' in short). The final report has not been laid. Therefore, the petitioner is entitled to be released on statutory bail in view of the proviso to sub-section (2) of Section 167 of the Code. Hence, the bail application may be allowed.

The learned Public Prosecutor opposed the application. She contended that the petitioner has committed a heinous crime. Nonetheless, she conceded to the fact that the offences alleged against the petitioner are all punishable for a period of less than ten years and that the final report has not been laid till date, even after the expiry of 60 days from the date of remand of the petitioner.

The prosecution allegation is that the petitioner and the second accused committed the offences punishable under Sections 457, 380, 361 r/w. 34 of the Indian Penal Code. All the above offences are punishable for a period of less than ten years. Indisputably, the petitioner was arrested on 01.12.2023 and was remanded to judicial custody on 02.12.2023. Therefore, the time period of 60 days has lapsed for the filing of the final report, after the remand of the petitioner. Admittedly, the final report has not been laid.

Section 167 of the Code 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:

The Constitution Bench of the Honourable Supreme Court in Sanjay Dutt v.State through C.B.I., Bombay [(1994) 5 SCC 410] after laying down the principles, recorded its conclusions, of which conclusion 53 (2) (b) is relevant for this case, which is reproduced below:

"53.(2)(b) The "indefeasible right" of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167 of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage."

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 petitioner was remanded to judicial custody on 02.12.2023 i.e for a period of more than 60 days and the Final Report has not been laid till date. Therefore, I am of the definite view that the petitioner is entitled to be released on statutory bail since it is his 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 petitioner to be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) 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 petitioner shall appear before the Investigating Officer as and when required;

(ii) The petitioner 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 petitioner shall not commit any offence while they are on bail;

(iv) 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;

(v) Applications for deletion/modification of the bail conditions shall also be filed and entertained by the court below.