Biju v. State of Kerala

1 BA No.1264 of 2024 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 BAIL APPL. NO. 1264 OF 2024 ``` ``` CRIME NO.10/2024 OF Koratty Police Station, Thrissur PETITIONER/S: ``` ``` BIJU, AGED 41 YEARS S/O. THANKAPPAN, RESIDING AT MUKKIL HOUSE, KUVAKKATTUKUNNU DESOM,KORATTY KIZHAKKUMURRY VILLAGE,CHALAKKUDY TALUK,THRISSUR, PIN - 680307 ``` ``` BY ADVS. ``` ``` SINDHU SANTHALINGAM JESSY S.SALIM NEJINA B. ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER, KORATTY POLICE STATION, CHALAKUDY TALUK, THRISSUR, PIN - 680308 ``` ``` OTHER PRESENT: ``` ``` Sr PP Smt Seetha S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1264 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.1264 of 2024** **----------------------------------Dated this the 4[th] day of March, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.10/2024 of the Koratty Police Station, Thrissur, registered against the accused , for allegedly committing the offences punishable under Secs 143, 147, 341, 323, 506, 384 read with Section 149 of the Indian Penal Code. 2. The essence of the prosecution case is that: on 30.12.2023 between 19.30 hours and 23.30 hours, the accused 2 to 9 formed themselves into an unlawful assembly and in prosecution of their common intention, restrained the de facto complainant and his friend and threatened to do away from life. The accused thereafter committed extortion 3 BA No.1264 of 2024 by forcefully taking away an amount of Rs.60,000/- from the de facto complainant. During the investigation, it was revealed that the first accused was also present at the scene of occurrence. Thus, the accused have committed the above offences. 3. Heard Sri.Sindhu Santhalingam, learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor appearing for the respondents. 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 arrested on 3.1.2024 and remanded to judicial custody on the same day. Notwithstanding the other contentions raised in the application, the Investigating Officer has not laid the final report. Therefore, the petitioner is entitled to be released on statutory bail. Hence, the application may be allowed. 4 BA No.1264 of 2024 5. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner is a person with criminal antecedents. The petitioner is involved in eighteen other crimes of similar nature. Nonetheless, she conceded to the fact that the petitioner was remanded to judicial custody on 3.1.2024, 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. 6. On a scrutiny of the materials placed on record, it is undisputed that the petitioner was remanded to judicial custody on 3.1.2024. The offences alleged against the petitioner are all punishable for a period of less than ten years. Therefore, the petitioner is entitled to be released on compulsive bail as contemplated under sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973, since the Investigating Officer has not laid the final report within 5 BA No.1264 of 2024 the statutory period of 60 days from the date of remand of the petitioner. 7. 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." 6 BA No.1264 of 2024 8. 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) 9. In the instant case, the petitioner was remanded to judicial custody on 3.1.2024 and the Final Report has not been laid till date. Therefore, I hold 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. 7 BA No.1264 of 2024 10. 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 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; (iv) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be 8 BA No.1264 of 2024 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. (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 **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. sd/- sks/4.3.2024 **C.S.DIAS, JUDGE**