Ashraf A v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 28[TH] DAY OF MAY 2024 / 7TH JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 4343 OF 2024` ``` CRIME NO.264/2024 OF KUTHUPARAMBA POLICE STATION, KANNUR ``` ``` AGAINST THE ORDER IN CRMC NO.756 OF 2024 OF DISTRICT COURT & SESSIONS COURT,THALASSERY ``` ## `PETITIONER:` ``` ASHRAF A, AGED 32 YEARS S/O. ALIYAR E M, EDAPPARA HOUSE, PUTHUSSERI PERAVOOR P.O, MANATHANA AMSHAM, KANNUR DISTRICT, PIN – 670673 ``` ``` BY ADVS.RESHMA E. ANNA SONIE ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` 2THE STATION HOUSE OFFICER, (CRIME NO. 264 OF 2024 OF KUTHUPARAMBA POLICE STATION) KANNUR DISTRICT, PIN – 670643 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.4343/2024_ _-:2:-_ _Dated this the 28[th] day of May, 2024_ ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), by the second accused in Crime No.264/2024 of the Kuthuparamba Police Station, Kannur, registered against the accused for allegedly committing the offence punishable under Section 420 read with Section 34 of the Indian Penal Code, 1860. The petitioner was arrested and remanded to judicial custody on 28.03.2024. 2. The crux of the prosecution case is that: the de-facto complainant was running a financial institution named ‘Durga Finance”. The accused, in furtherance of their common intention, approached the de-facto complainant between the period from 15.08.2023 to 15.03.2024 and pledged spurious gold _B.A.No.4343/2024_ _-:3:-_ weighing 254 grams in the financial institution and dishonestly obtained Rs.11,10,000/- as a loan. On verifying the purity of the gold, it was found to be spurious. Thus, the accused has committed the above offence. 3. Heard; Smt. Reshma E., the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner was remanded to judicial custody on 28.03.2024, the investigation in the case is in progress, and the final report has not been laid. Therefore, the petitioner is entitled to the benefit of statutory bail as contemplated under the proviso to sub-section (2) of Section 167 of the Code. Hence, the bail application may be allowed. _B.A.No.4343/2024_ _-:4:-_ 5. The learned Public Prosecutor seriously opposed the application. She submitted that the investigation is in progress. She also stated that the petitioner is a person with criminal antecedents. Hence, if the petitioner is released on bail, there is every likelihood of him committing similar offences. Nonetheless, she did not dispute the fact that the offence alleged against the petitioner is punishable for a period of less than ten years, the investigation in the case is not complete, and the final report has not been laid, even though the petitioner has been in judicial custody for the last more than 60 days. 6. The prosecution allegation against the petitioner is that he along with the other accused, cheated the de facto complainant by pledging spurious gold and securing an amount of Rs.11,10,000/-. 7. Indisputably, the petitioner was arrested and remanded to judicial custody since 28.03.2024. The _B.A.No.4343/2024_ _-:5:-_ offence alleged against the petitioner is punishable for a period of less than ten years. Admittedly, the Investigating Officer has not laid the final report till date. ## 8. 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 _B.A.No.4343/2024_ _-:6:-_ 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 _B.A.No.4343/2024_ _-:7:-_ 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.] 9. 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 _B.A.No.4343/2024_ _-:8:-_ 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." 10. In the instant case, as the petitioner has been in judicial custody since 28.03.2024, the offence alleged against the petitioner is punishable for a period of less than ten years, and the Investigating Officer has not laid the final report till date, I am convinced that the petitioner is entitled to be released on statutory ## _B.A.No.4343/2024_ ## _-:9:-_ 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 him 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 him 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 he is on bail; _-:10:-_ ## _B.A.No.4343/2024_ - (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit 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 petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in _B.A.No.4343/2024_ _-:11:-_ **Sushila Aggarwal v. State of Delhi and another** [2020 (1) KHC 663]. Sd/- ## **C.S.DIAS,JUDGE** DST/28.05.24 //True copy// P.A. To Judge