MANJESH v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 BAIL APPL. NO. 4795 OF 2024** **CRIME NO.427/2024 OF Parippally Police Station, Kollam PETITIONER/S:** **MANJESH, AGED 36 YEARS KIZHAKKEVILA VEEDU, PARIPPALLY VILLAGE, PIN - 691574** **BY ADV M.R.SASITH** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031** **SR.PP.SMT.NEEMA T.V.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **18.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C.S.DIAS,J** ## **-------------------------------------------Bail Application No.4795 of 2024 --------------------------------------------Dated this the 18[th] day of July, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 1[st] accused in Crime No.427/2024 of the Parippally Police Station, Kollam, which is registered against the accused for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324, 308 and 201 r/w Section 34 of the Indian Penal Code (in short, 'IPC). The petitioner was arrested and remanded to judicial custody on 06.05.2024. 2. The essence of the prosecution case is that: on 03.05.2024, at around 16.00 hours, the accused, in furtherance of their common intention, had formed an unlawful assembly and the 1[st] accused attempted to hit on the head of the informant with an iron pipe. However, since the informant warded off the attack, it only resulted in the informant suffering an injury on his left ear. The 2[nd] accused slapped the informant and the 3[rd] accused BAIL APPL. NO. 4795 OF 2024 3 stamped him and beat him with a stick. Thus, the accused have committed the above offences. 3. Heard; Sri.Sasith M.R., the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. The Investigating Officer has deliberately incorporated Section 308 of the IPC to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody for the last more than 65 days, the investigation in the case is not complete and the final report has not been laid. Therefore, the petitioner is entitled to statutory bail. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner is an inveterate offender, since he is involved in six other BAIL APPL. NO. 4795 OF 2024 4 crimes of a similar nature. She also stated that the investigation in the case is in progress. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the petitioner has been in judicial custody for the last more than 60 days, the offences alleged against the petitioner are all punishable for a period upto ten years and the final report has not been laid. ## 6. Subsections (1) and (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 well founded, 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, BAIL APPL. NO. 4795 OF 2024 5 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;] ## 7. 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 APPL. NO. 4795 OF 2024 6 bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” (emphasis added) 8. In the instant case, as the petitioner has been in judicial custody for the last more than 65 days, the investigation in the case is not complete, all the offences alleged against the petitioner are punishable for a period upto ten years, and the Investigating Officer has not laid the final report till date, I am satisfied 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. In the result, the application is allowed, by directing the petitioner to be released on bail on him 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 petitioner shall appear before the Investigating Officer on every Saturday between 9 BAIL APPL. NO. 4795 OF 2024 7 a.m. and 11 a.m till the final report is laid. He shall also 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) 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. BAIL APPL. NO. 4795 OF 2024 8 - (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 **Sushila Aggarwal v. State (NCT of Delhi) and Another** [2020 (1) KHC 663]. sd/- ## **C.S.DIAS,JUDGE** rkc/18.07.24 BAIL APPL. NO. 4795 OF 2024 9 ## **APPENDIX OF BAIL APPL. 4795/2024** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF THE FIR IN CRIME NO.427/2024 OF PARIPPALLY POLICE STATION, KOLLAM Annexure A2 THE TRUE COPY OF THE ORDER IN CRL.M.C NO. 1048/2024 BEFORE THE PRINCIPLE SESSIONS COURT, KOLLAM, DATED 4.6.2024,**