Sirajudheen M.A. vs State Of Kerala

C.S.Dias, J

The applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.5/2024 of the Cyber Crime Police Station, Pathanamthitta, registered against the accused, for allegedly committing the offences punishable under Sections 420 and 120B read with Sec.34 of the Indian Penal Code and Sec.66D of the Information Technology Act. The petitioners were arrested and remanded to judicial custody on 4.4.2024.

The gist of the prosecution case is that; the accused, in furtherance of their common intention, dishonestly induced the de facto complainant to invest money with them by assuring him profit from the share market. Consequently,   the   de   facto   complainant transferred an amount of Rs.3,45,11,574/- to the bank accounts of the accused in various banks. However, the accused failed to pay the profit or return the capital. Thus, the accused have committed the above offences.

Heard; Sri.K.Rakesh and Sri.Manu Ramachandran, the learned counsel appearing for the petitioners and Smt.Neema T.V, the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. There are no incriminating materials to show the petitioners’ involvement in the crime. In any given case, the petitioners have been in judicial custody for the last 61 days, the investigation in the case is not complete and final report has not been laid. Therefore, the petitioners are entitled to statutory bail as provided under Sec.167((2) of the Code of Criminal Procedure. Hence, the applications may be allowed.

The learned Public Prosecutor opposed the applications. She submitted that the investigation is in progress. She also stated that if the petitioners are released on bail, there is a likelihood of them committing a similar offence. Furthermore, the petitioners are not co-operating with the Investigating Officer. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the offences alleged against the petitioners are all punishable for a period of less than ten years, that the petitioners have been in judicial custody for the last 61 days, the investigation in the case is not complete and the final report has not been laid.

The prosecution allegation against the petitioners is that, they had cheated the de facto complainant to the tune of Rs.3,45,11,574/-. Accordingly, they have committed the offences punishable under Sec.420 read with Sec.120B and Sec.66D of the Information Technology Act. Indisputably, the above offences are all punishable for a period of less than ten years.

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;]

[(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

[Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.]

[Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.]

[Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.]

Interpreting sub-section (ii) of Section 167 of the Code, the Constitutional Bench of the Honourable Supreme Court in Sanjay Dutt v. State through C.B.I., Bombay [(1994) 5 SCC 410] has observed as follows:-

"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, the petitioners have been in judicial custody for the last 61 days, all the offences alleged against the petitioners are punishable for a period of less than ten years, the investigation in the case is not complete and final report has not been laid till date, I am satisfied that the petitioners are entitled to be released on compulsive bail since it is their indefeasible right under Section 167(2) of the Code. Hence, I allow the bail applications.

In the result, the applications are allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.50,000/- (Rupees Fifty Thousand 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 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 at the time of execution of the bond. If they have no passports, they shall file affidavits to the effect before the court below on the date of execution of the bond;

(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].