Abdul Rasheed, Shoukathali and Aboobacker Siddique B v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946 BAIL APPL.NO.4176 OF 2024 ``` ``` CRIME NO.179/2024 OF Manjeswar Police Station, Kasargod ``` ``` ---------------- ``` ## **`PETITIONERS :-`** ``` 1ABDUL RASHEED, AGED 28 YEARS S/O.IBRAHIM, R.AT IRSHAD MANZIL, KANWATHEERTHA, KUNJATHUR VILLAGE, KASARAGOD, PIN - 671 323 ``` ``` 2SHOUKATHALI, AGED 39 YEARS S/O.MUHAMMED, R.AT NEAR RAILWAY GATE, KANWATHEERTHA, KUNJATHUR, KASARAGOD, PIN - 671 323 3ABOOBACKER SIDDIQUE B, AGED 37 YEARS S/O.BAVA ABDULLA @ UB BAVA, NEAR RAILWAY GATE, KANWATHEERTHA, KUNJATHUR GRAMAM, KASARAGOD, PIN - 671 323 ``` ``` BY ADV T.B.SHAJIMON ``` ## **`RESPONDENT :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY ADVS. SRI.C.K.SURESH, PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.4176 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R Dated this the 6 th day of June, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 to 3 in Crime No.179/2024 of the Manjeswar Police Station, Kasaragod, which is registered against the accused, for allegedly committing the offences punishable under Sections 143, 147, 148, 342, 323, 324, 364 and 302 r/w Section 149 of the Indian Penal Code. The 1st accused was arrested and remanded to on judicial custody 06.03.2024 and accused 2 and 3 were arrested and remanded to judicial custody on 07.03.2024. 2. The gist of the prosecution case is that; on 04.03.2024, at around 12 hours, one Moideen Arif (deceased), the nephew of the de facto complainant, was found lying in an unconscious state. Although he was rushed to the hospital, he was declared brought dead. Accordingly, a case was registered under Section 174 of the Code of Criminal Procedure. However, in the ``` BAIL APPL.NO.4176 OF 2024 ``` ``` -: 3 :- ``` investigation that was conducted, it was revealed that the accused, in prosecution of their common intention, had kidnapped the deceased and detained him, and then attacked him with a wooden stick, which resulted in Sub Endo Cardial Haemorrhage. Thus, the accused have committed the above offences. 3. Heard; Sri.T.B.Shajimon, the learned counsel appearing for the petitioners and Sri.C.K.Suresh, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. There is no material to substantiate that the petitioners have committed the above offences. The Investigating Officer has deliberately implicated the petitioners as the accused in the crime. In any given case, the petitioners have been in judicial custody for the last more than 91 days, the investigation in the case is not complete and the final report has not been ``` BAIL APPL.NO.4176 OF 2024 ``` ``` -: 4 :- ``` laid. Therefore, the petitioners are entitled to statutory bail as provided under Section 167(2) of the Cr.P.C. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, _inter alia_ , opposing the application. The has stated that there are Investigating Officer incriminating materials to show the petitioners' complicity in the crime. The investigation is in progress. If the petitioners are released on bail, they would tamper with the evidence and intimidate the witnesses, which would torpedo the investigation. Therefore, the application may be dismissed. Nonetheless, it is not disputed that the petitioners have been in judicial custody for the last 91 days, the investigation is not complete and the final report has not been laid. 6. The prosecution allegation against the petitioners is that; they had committed the murder of the deceased and the 1st accused was arrested and remanded to judicial ``` BAIL APPL.NO.4176 OF 2024 ``` ``` -: 5 :- ``` custody on 06.03.2024 and accused 2 and 3 were arrested and remanded to judicial custody on 07.03.2024. Indisputably, the petitioners have been in judicial custody for the last 91 days and the final report has not been laid. 7. Subsection (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows :- 167. 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 ``` BAIL APPL.NO.4176 OF 2024 ``` ## `-: 6 :-` 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 ``` BAIL APPL.NO.4176 OF 2024 ``` ``` -: 7 :- ``` 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.] 8. Interpreting sub-section (ii) of Section 167 of the Code, the Constitutional Bench of the Honourable v Supreme Court in **Sanjay Dutt 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 ``` BAIL APPL.NO.4176 OF 2024 ``` ``` -: 8 :- ``` 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." 9. 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) 10. In the instant case, as the petitioners have been in judicial custody for the last 91 days and the Investigating Officer has not filed the final report within the stipulated statutory time period. Therefore, I am satisfied that the petitioners are entitled to be released on compulsive bail, since it is their indefeasible right under ``` BAIL APPL.NO.4176 OF 2024 ``` ``` -: 9 :- ``` 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.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 petitioners shall appear before the on - Investigating Officer 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 ``` BAIL APPL.NO.4176 OF 2024 ``` ``` -: 10 :- ``` execution of the bond. If have no they 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 filed and entertained before 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]. **Sd/C.S. DIAS, JUDGE** Jvt/6.6.2024 ``` BAIL APPL.NO.4176 OF 2024 ``` ``` -: 11 :- ``` ## **`APPENDIX OF BAIL APPL. 4176/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure A1COPY OF THE REJACTION ORDER PASSED BY THE JFCM IICOURT KASARAGOD IN C.M.P NO. 734/2024 Annexure A2COPY OF THE BAIL DISMISSAL ORDER IN BAIL APPLICATION IN CRL M.C.NO .473/2024 DATED ON 09/05/2024; ```