Jaffar Muhasin v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 CRL.MC NO. 2215 OF 2023** **CRL.M.P NO. 3142/2022 OF THE I ADDL. SESSIONS JUDGE,** **THRISSUR** ## **PETITIONER/S:** JAFFAR MUHASIN AGED 25 YEARS S/O.MUHAMMED MAMMU, THAYAMKULAM HOUSE, PAZHANJI VILLAGE, KUNNAMKULAM, THRISSUR DISTRICT., PIN - 680503 BY ADV NIREESH MATHEW ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** SRI. M C ASHI (PP) **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.03.2023, THE COURT ON 28.03.2023 PASSED THE FOLLOWING:** Crl.M.C No.2215 of 2023 -2- ## **ORDER** Dated this the 28[th] day of March, 2023 The petitioner is the first accused in Crime No.470 of 2022 of Kunnamkulam Police Station registered, for offences punishable under Sections 22(c) and 29 of the NDPS Act. The prosecution allegation is that at about 22.35 hours on 03.04.2022, while the petitioner was riding a motorcycle with one Sudeesh as pillion rider, the vehicle was intercepted and on searching the petitioner, he was found to be in 10.80 grams of MDMA. Thereupon, the crime was registered, the accused arrested and the contraband seized. The petitioner is continuing in custody from the date of his arrest (03.04.2022) and having completed 180 days of custody on 30.09.2022, he became entitled for statutory bail. Although petitioner moved an Crl.M.C No.2215 of 2023 -3- application seeking statutory bail, that was considered along with the application seeking extension of period of investigation submitted by the Public Prosecutor as per Section 36A(4) of the NDPS Act. By Annexure 3 order, the learned Ist Additional Sessions Judge allowed the application submitted by the Public Prosecutor and granted one more month's time for completing the investigation and filing final report. Consequently, the petitioner's bail application was dismissed, by Annexure 1 order, finding him to be not entitled for default bail in view of the extension granted as per Annexure 3 order. 2. Challenging the extension granted as per Annexure 3 order, accused No.3 filed a Crl.M.C which was allowed as per Annexure 4 order. The learned Single Judge upheld the challenge against the extension finding that the application was filed by the investigating officer, contrary to the mandate of Section 36A(4). It was also found Crl.M.C No.2215 of 2023 -4- that the accused was not produced in court while considering the application for extension, thereby violating the requirement of Section 167(2) of the Code. Consequently, the third accused was granted bail. This Crl.M.C is filed on the strength of Annexure 4 order. 3. Heard learned Counsel for the petitioner and the Senior Public Prosecutor. 4. The learned Pubic Prosecutor submitted that there is difference between the facts involved in the present case and the factual circumstances under which Annexure 4 order was passed. The difference being that in the case at hand, final report was filed during the extended period, thereby extinguishing the petitioner's right to default bail. 5. Learned Counsel for the petitioner contended that, filing of the final report will not take away the indefeasible right accrued on the petitioner since the application seeking Crl.M.C No.2215 of 2023 -5- statutory bail was dismissed only on the basis of the extension granted. Once that order is quashed, the right to default bail will revive. In support of this contention, reliance is placed on the decisions of the Supreme Court in _**Uday Mohanlal Acharya v. State of Maharashtra [(2001)**_ _**5 SCC 453]** and_ _**Bikramjit Singh v. The State Of Punjab [(2020) 10 SCC 616]**_ 6. In the nature of the contention urged, it is apposite to consider the decision with regard to the indefeasible right to statutory bail rendered by the Constitution Bench in _**Sanjay Dutt v. State through CBI [(1994) 5 SCC 410]**_ . The final conclusion of the Constitution Bench available at paragraph 53.2.(b) of the judgment reads as under; _“53. As a result of the above discussion, our answers to the three questions of law referred for our decision are as under: (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_ Crl.M.C No.2215 of 2023 -6- _with Section 167(2) 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 [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] 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.”_ _[Emphasis Supplied]_ ## 7. In _**Uday Mohanlal Acharya** (supra)_ , the Apex Court had occasion to consider the impact on the indefeasible right of an accused in case in which the final report is filed after the Crl.M.C No.2215 of 2023 -7- statutory period. The challenge in _**Uday Mohanlal Acharya**_ was against the High Court's order refusing to grant bail by invoking Section 167 of the Code on the ground that, by the time the application for bail came up for consideration, the charge sheet had been filed. After detailed precedential survey, the Apex Court held as under in paragraph 13 of the judgment reads as under; _“13........In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to subsection (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statutebook. In such a case, therefore, even if_ Crl.M.C No.2215 of 2023 -8- _the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution. There is no provision in the Criminal Procedure_ Crl.M.C No.2215 of 2023 -9- _Code authorising detention of an accused in custody after the expiry of the period indicated in proviso to sub-section (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed, then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the court then the right of the accused on being released on bail cannot be frustrated on the off chance of the Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This is the only way how a balance can be struck between the so-_ Crl.M.C No.2215 of 2023 -10- _called indefeasible right of the accused on failure on the part of the prosecution to file a challan within the specified period and the interest of the society, at large, in lawfully preventing an accused from being released on bail on account of inaction on the part of the prosecuting agency.”_ 8. In the instant case, the petitioner had filed application for default bail prior to completion of the 180 days and the application was dismissed on the premise that the application under Section 36A(4) seeking extension of the investigation submitted by the prosecution had been allowed. As per Annexure 4 order, this Court has set aside the order extending the period for investigation (Annexure 3). That order being general in nature, will apply to the petitioner also. Even otherwise, I am in agreement with findings in Annexure 4 and therefore, Annexure 3 is found to be unsustainable. **==> picture [381 x 10] intentionally omitted <==** be illegal, the order rejecting statutory bail Crl.M.C No.2215 of 2023 -11- cannot survive, the same being a consequential order. In such circumstances, petitioner's application for default bail will have to be treated as pending on the date of expiry of the statutory period. As such, the petitioner was liable to be released on default bail on completion of the 180 days. The subsequent filing of the final report will not affect this indefeasible right accrued on completion of 180 days. This, in effect, is the law laid down by the Apex Court in the precedents above. In the result, the Crl.M.C is ordered as under; (i) Annexures 1 and 3 orders are quashed. (ii) The petitioner shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for the like amount to the satisfaction of the court below. (iii) The petitioner shall surrender his Crl.M.C No.2215 of 2023 -12- passport, if any, before the court below on the date of execution of the bond, or within a period of three days, after getting exemption in that regard from the court below. If the petitioner does not have a passport, he shall file an affidavit stating so on the date of execution of bond or within three days' thereafter. (iv) The petitioner shall co-operate with the investigation and shall make himself available for interrogation by the investigating officer as and when required. **==> picture [381 x 12] intentionally omitted <==** offence during subsistence of this bail order. Sd/- **V.G.ARUN JUDGE** Scl/ Crl.M.C No.2215 of 2023 -13- ## **APPENDIX OF CRL.MC 2215/2023** |PETITIONER|ANNEXURES| |---|---| |Annexure1|TRUE PHOTOCOPY OF THE ORDER DATED| ||18.10.2022 PASSED BY THE I ADDL.| ||SESSIONS JUDGE, THRISSUR IN CRL.M.P| ||NO. 3142/2022| |Annexure2|TRUE PHOTO COPY OF THE PETITION FILED| ||BY THE PUBLIC PROSECUTOR UNDER SECTION| ||36A(4) OF THE NDPS ACT DATED| ||27.09.2022 BEFORE THE I ADDL. SESSIONS| ||COURT, THRISSUR| |Annexure3|TRUE PHOTOCOPY OF THE ORDER DATED| ||18.10.2022 IN CRL.M.P. NO. 3053/2022| ||PASSED BY THE I ADDL. SESSIONS COURT,| ||THRISSUR| |Annexure4|TRUE PHOTOCOPY OF THE DECISION| ||MUHAMMED AJMAL V. STATE OF KERALA| ||REPORTED IN 2022 ICO 2223|