Sarvesh Babu v. State of Kerala (with Muhammed Abdul Kareem Faisal impleaded as respondent)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945 ``` ``` BAIL APPL. NO. 11196 OF 2023 ``` ## **`CRIME NO.658/2022 OF NADAKKAVU POLICE STATION, KOZHIKODE`** ## **`PETITIONER:`** ``` SARVESH BABU, AGED 45 YEARS S/O. GAJARAJAN, T.-6, 4C4, KGIS4,PLATINUM APARTMENT, SARAVANAMPETTI,COIMBATORE, TAMILNADU, PIN - 641001 ``` ``` BY ADVS. M.B.SHYNI U.JAYAKRISHNAN RAJESH KUMAR R. RAMEES P.K. V.R.ANILKUMAR SARAFUDHEEN T. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2MUHAMMED ABDUL KAREEM FAISAL, S/O MOHAMEDALI HAJI, MANAGING PARTNER OF BENCY AND COMPANY, 5412, 5TH FLOOR EMERALD MALL, MAVOOR ROAD,KOZHIKODE (IS IMPLEADED AS PER ORDER DATED 12/1/2024 IN CRL.M.A. NO.1/2023 IN B.A.NO.11196/2023) ``` ``` BY ADVS. SAIBY JOSE KIDANGOOR BENNY ANTONY PAREL ANOOP SEBASTIAN PRAMITHA AUGUSTINE ADITHYA KIRAN V.E ADRISYA S. ``` ## **`B.A. NO.11196 OF 2023 2`** ## **`OTHER PRESENT:`** ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`B.A. NO.11196 OF 2023 3`** ## **Dated this the 12[th] day of January, 2024 ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 ( in short, Cr.P.C.), by the 4[th] accused in Crime No.658/ 2022 of the Nadakkavu Police Station registered against the accused (4 in number) for allegedly committing the offences punishable under Sections 379, 420, 468 and 471 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 12.11.2023 and remanded to judicial custody on 13.11.2023. 2. The gist of the prosecution case is that: the accused committed theft of 19 cheque leaves of the de facto complainant and he withdrew an amount of Rs.98,00,000/- on 12.8.2022 and Rs.80,00,000/- on 17.8.2022 from the account of the de facto complainant. The accused had also forged signatures of the de facto ## **`B.A. NO.11196 OF 2023 4`** complainant on the cheques. Thus, the accused have committed the above offences. 3. Heard; Sri. M.B.Shyni, the learned counsel appearing for the petitioner, Smt. Neema T.V. the learned Public Prosecutor appearing for the second respondent and Sri. Saiby Jose Kidangoor, the learned counsel appearing for the third respondent, the de facto complainant. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the above crime. The offences alleged against the petitioner will not be attracted. Notwithstanding the above contention, all the offences alleged against the petitioner are only punishable for a period of less than ten years. The petitioner was remanded to judicial custody on 13.11.2023. The final report has not been laid. Therefore, the petitioner is entitled to be released on compulsive bail as provided under the proviso to Sub ## **`B.A. NO.11196 OF 2023 5`** section (2) of Section 167 of the Cr.P.C. In order to press the petitioner's said right, the petitioner has also filed Crl.M.A No.1/2024 to release him on default bail. It is the indefeasible right of the petitioner to be released on statutory bail. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She contended that the petitioner has committed a heinous crime. He has antecedents. He has not co-operated with the Investigating Officer. The case has been transferred to the Crime Branch. If the petitioner is let off on bail, it would impair the proper investigation of the case. Moreover, another accused has to be arrested. Hence, the application may be dismissed. 6. The petitioner is implicated as an accused for allegedly committing the offences punishable under Sections 379, 420, 468 , 471 r/w Section 34 of the IPC. All the above offences are punishable for a period of less than ten years. 7. Section 167 of the Code of the Criminal Procedure ## **`B.A. NO.11196 OF 2023 6`** ## 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 subinspector, 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 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— ## **`B.A. NO.11196 OF 2023 7`** (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.” 8. 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 ## **`B.A. NO.11196 OF 2023 8`** ## 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." 9. A three-Judge Bench of the Honourable Supreme Court in **Uday Mohanlal Acharya v. State of Maharashtra** [(2001) 5SCC 453], reiterated the legal proposition in Sanjay Dutt v.State through C.B.I., ## **`B.A. NO.11196 OF 2023 9`** 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 **Satender Kumar Antil vs.** Recently, **Central Bureau of Investigation** [2022 (4) KHC 570 (SC], the Honurable Supreme Court has reiterated the principles under Section 167 of the Cr.P.C in the following manner:- 34. S.167(2) was introduced in the year 1978, giving emphasis to the maximum period of time to complete the investigation. This provision has got a laudable object behind it, which is to ensure an expeditious investigation and a fair trial, and to set down a rationalised procedure that protects the interests of the indigent sections of society. This is also another limb of Art.21. Presumption of innocence is also inbuilt in this provision. An investigating ## **`B.A. NO.11196 OF 2023 10`** agency has to expedite the process of investigation as a suspect is languishing under incarceration. Thus, a duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect. Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic, as held by this Court in M. Ravindran v. Directorate of Revenue Intelligence (2020 KHC 6604 : (2021) 2 SCC 485 : 2020 (6) KHC SN 17 : 2020 KHC OnLine 6604 : 2021 (1) KLD 1 : 2020 (6) KLT 127 : 2020 (12) SCALE 190 : AIR 2020 SC 5245 : 2021 CriLJ 1918): " **II. S.167(2) and the Fundamental Right to Life and Personal Liberty** 17. Before we proceed to expand upon the parameters of the right to default bail under S.167(2) as interpreted by various decisions of this Court, we find it pertinent to note the observations made by this Court in Uday Mohanlal Acharya [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] on the fundamental right to personal liberty of the person and the effect of deprivation of the same as follows: (SCC p. 472, para 13) "13. ... 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 Art.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 subsection (2) of S.167, any further detention beyond the ## **`B.A. NO.11196 OF 2023 11`** 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 Art.21 of the Constitution." 17.1. Art.21 of the Constitution of India provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law". It has been settled by a Constitution Bench of this Court in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248], that such a procedure cannot be arbitrary, unfair or unreasonable. The history of the enactment of S.167(2) CrPC and the safeguard of "default bail" contained in the proviso thereto is intrinsically linked to Art.21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law. 17.2. Under S.167 of the Code of Criminal Procedure, 1898 ("the 1898 Code") which was in force prior to the enactment of the CrPC, the maximum period for which an accused could be remanded to custody, either police or judicial, was 15 days. However, since it was often unworkable to conclude complicated investigations within 15 days, a practice arose wherein investigating officers would file "preliminary charge - sheets" after the expiry of the remand period. The State would then request the Magistrate to postpone commencement of the trial and authorise further remand of the accused under S.344 of the 1898 Code till the time the investigation was completed and the final charge - sheet was filed. The Law Commission of India in Report No. 14 on Reforms of the Judicial ## **`B.A. NO.11196 OF 2023 12`** Administration (Vol. II, 1948, pp. 758-760) pointed out that in many cases the accused were languishing for several months in custody without any final report being filed before the Courts. It was also pointed out that there was conflict in judicial opinion as to whether the Magistrate was bound to release the accused if the police report was not filed within 15 days. 17.3. Hence the Law Commission in Report No. 14 recommended the need for an appropriate provision specifically providing for continued remand after the expiry of 15 days, in a manner that "while meeting the needs of a full and proper investigation in cases of serious crime, will still safeguard the liberty of the person of the individual". Further, that the legislature should prescribe a maximum time period beyond which no accused could be detained without filing of the police report before the Magistrate. It was pointed out that in England, even a person accused of grave offences such as treason could not be indefinitely detained in prison till commencement of the trial. 17.4. The suggestion made in Report No. 14 was reiterated by the Law Commission in Report No. 41 on The Code of Criminal Procedure, 1898 (Vol. I, 1969, pp. 76-77). The Law Commission re - emphasised the need to guard against the misuse of S.344 of the 1898 Code by filing "preliminary reports" for remanding the accused beyond the statutory period prescribed under S.167. It was pointed out that this could lead to serious abuse wherein "the arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner". Hence the Commission recommended fixing of a maximum time - limit of 60 days for remand. The Commission considered the ## **`B.A. NO.11196 OF 2023 13`** reservation expressed earlier in Report No. 37 that such an extension may result in the 60 - day period becoming a matter of routine. However, faith was expressed that proper supervision by the superior Courts would help circumvent the same. 17.5. The suggestions made in Report No. 41 were taken note of and incorporated by the Central Government while drafting the Code of Criminal Procedure Bill in 1970. Ultimately, the 1898 Code was replaced by the present CrPC. The Statement of Objects and Reasons of the CrPC provides that the Government took the following important considerations into account while evaluating the recommendations of the Law Commission: "3. The recommendations of the Commission were examined carefully by the Government, keeping in view, among others, the following basic considerations: (i) an accused person should get a fair trial in accordance with the accepted principles of natural justice; (ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and (iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community." 17.6. It was in this backdrop that S.167(2) was enacted within the present day CrPC, providing for time - limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail. As is evident from the recommendations of the Law Commission mentioned supra, the intent of the legislature was to ## **`B.A. NO.11196 OF 2023 14`** balance the need for sufficient time - limits to complete the investigation with the need to protect the civil liberties of the accused. S.167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the Court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system. 17.7. Therefore, as mentioned supra, S.167(2) is integrally linked to the constitutional commitment under Art.21 promising protection of life and personal liberty against unlawful and arbitrary detention, and must be interpreted in a manner which serves this purpose. In this regard we find it useful to refer to the decision of the three - Judge Bench of this Court in Rakesh Kumar Paul v. State of Assam [Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] , which laid down certain seminal principles as to the interpretation of S.167(2) CrPC though the questions of law involved were somewhat different from the present case. The questions before the three - Judge Bench in Rakesh Kumar Paul [Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] were whether, firstly, the 90 - day remand extension under S.167(2)(a)(i) would be applicable in respect of offences where the maximum period of imprisonment was 10 years, though the minimum period was less than 10 years. ## **`B.A. NO.11196 OF 2023 15`** Secondly, whether the application for bail filed by the accused could be construed as an application for default bail, even though the expiry of the statutory period under S.167(2) had not been specifically pleaded as a ground for bail. The majority opinion held that the 90 - day limit is only available in respect of offences where a minimum ten year' imprisonment period is stipulated, and that the oral arguments for default bail made by the counsel for the accused before the High Court would suffice in lieu of a written application. This was based on the reasoning that the Court should not be too technical in matters of personal liberty. Madan B. Lokur, J. in his majority opinion, pertinently observed as follows: (SCC pp. 95-96 & 99, paras 29, 32 & 41) "29. Notwithstanding this, the basic legislative intent of completing investigations within twenty - four hours and also within an otherwise time - bound period remains unchanged, even though that period has been extended over the years. This is an indication that in addition to giving adequate time to complete investigations, the Legislature has also and always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in custody for a prolonged or indefinite period. It is for this reason and also to hold the investigating agency accountable that time - limits have been laid down by the Legislature. ... xxxx xxxx xxxx 32. ...Such views and opinions over a prolonged period have prompted the legislature for more than a century to ensure expeditious conclusion of investigations so that an accused person is not unnecessarily deprived of his or her personal ## **`B.A. NO.11196 OF 2023 16`** liberty by remaining in prolonged custody for an offence that he or she might not even have committed. In our opinion, the entire debate before us must also be looked at from the point of view of expeditious conclusion of investigations and from the angle of personal liberty and not from a purely dictionary or textual perspective as canvassed by the learned counsel for the State. xxxx xxxx xxxx 41. We take this view keeping in mind that in matters of personal liberty and Art.21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional Courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court." (emphasis supplied) Therefore, the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Art.21. 17.8. We may also refer with benefit to the recent judgment of this Court in S. Kasi v. State [S. Kasi v. State, (2021) 12 SCC 1 : 2020 SCC OnLine SC 529], wherein it was observed that the indefeasible right to default bail under S.167(2) is an integral part of the right to personal liberty under Art.21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was emphasised that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge - sheet. 17.9. Additionally, it is well - settled that in case of any ambiguity in the construction of a penal statute, the Courts ## **`B.A. NO.11196 OF 2023 17`** must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused. 17.10. With respect to the CrPC particularly, the Statement of Objects and Reasons (supra) is an important aid of construction. S.167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature, namely, ensuring a fair trial, expeditious investigation and trial, and setting down a rationalised procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Art.21. 17.11. Hence, it is from the perspective of upholding the fundamental right to life and personal liberty under Art.21 that we shall clarify and reconcile the various judicial interpretations of S.167(2) for the purpose of resolving the dilemma that has arisen in the present case." 35. As a consequence of the right flowing from the said provision, Courts will have to give due effect to it, and thus any detention beyond this period would certainly be illegal, being an affront to the liberty of the person concerned. Therefore, it is not only the duty of the investigating agency but also the Courts to see to it that an accused gets the benefit of S.167(2). ## 11. In the light of the unequivocal enunciation of law and ## **`B.A. NO.11196 OF 2023 18`** the statutory right conferred on the accused which flows under Article 21 of the Constitution of India and the undisputed fact that the final report has not been laid till date, I have no doubt in my mind to release the petitioner on bail. 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 on every alternate Saturdays between 9 a.m. and 11 a.m for a period of two months or till the final report is laid, whichever is earlier and 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 ## **`B.A. NO.11196 OF 2023 19`** 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. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. ## **`B.A. NO.11196 OF 2023 20`** (viii) 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 of Delhi and another** [2020 (1) KHC 663]. **SD/-** **C.S.DIAS, JUDGE** rmm12/1/2024