Shajahan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 23RD DAY OF JULY 2019 / 1ST SRAVANA, 1941** **BAIL APPL.NO.5219 OF 2019** **CRIME NO.1255/2019 OF KAYAMKULAM POLICE STATION, ALAPPUZHA** ## **APPLICANT/ACCUSED:** **SHAJAHAN, AGED 39 YEARS, S/O.IBRAHIMKUTTY, NEDUMPALLIL VEEDU, PERINGHALA MURI, KAYAMKULAM VILLAGE, ALAPPUZHA - 690 537.** **BY ADVS.** **SRI.P.VIJAYA BHANU (SR.), SRI.M.REVIKRISHNAN, SRI.P.M.RAFIQ, SMT.POOJA PANKAJ, SRI.AJEESH K.SASI SRI.V.C.SARATH, SRI.VIPIN NARAYAN, SRUTHY N. BHAT** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. -------------------------------B.A. No. 5219 of 2019 -------------------------------Dated this the 23[rd] day of July, 2019 ## O R D E R The petitioner is the sole accused in Crime No.1255/2019 of Kayamkulam Police Station, which has been registered for offences punishable under Secs.452, 354A(3), 506(i) and 511 of 376 of the IPC. 2. The prosecution case in short is that, the lady defacto complainant, aged 29 years is a disabled person suffering from hearing impairment and that she is residing with her husband and since there was complaint regarding the functioning of the water purifier, the petitioner had earlier came there on 3.5.2019 for repair works and as the defacto complainant’s husband had to go for work, the accused was told to come in the evening, after the husband comes back after work. Later, the accused came to the house at about 1 p.m. on the same day and entered into the house under the guise of repairing the water purifier and asked for certain cloths to clean the purifier and later he remained naked and B.A. No. 5219 of 2019 ..3.. had exhibited his nudeness to the lady defacto complainant and also demanded that she should undress and lay down with him and had caught hold of her hands with force and had also shown certain obscene video pictures in his mobile to her and the lady immediately ran away to the next house and the petitioner/accused had threatened that if she discloses it to anybody, he will kill her, etc. The petitioner has been apprehended on 4.5.2019 and has been under judicial custody since then. 3. The learned counsel appearing for the petitioner would submit that, the abovesaid criminal proceedings have arisen only on account of misunderstandings, and that the entire disputes between the lady defacto complainant and the petitioner/accused have now been settled, and that the lady defacto complainant has sworn to an affidavit stating about the abovesaid factual submissions that she has no objection for the quashment of impugned criminal proceedings, and the said affidavit is produced as Anx.A-3 in Crl.M.C. No. 4034/2019 filed by the petitioner herein, in which the lady defacto complainant has been impleaded as respondent No.2, and that Crl.M.C. No. 4034/2019 has been B.A. No. 5219 of 2019 ..4.. disposed of by this Court as per order dated 8.7.2019, recording the request of the petitioner seeking leave to withdrawn the said Crl.M.C, to work out other available remedies in the manner known to law. 4. Further it is crucially submitted by the learned counsel appearing for the petitioner that, two out of the four offences alleged against the petitioner in the instant case, viz Secs. 354A(3) and 506(i) of the IPC are bailable offences, and the only non bailable offence in this case are those under Secs. 452 & 511 of 376 of the IPC [house trespass and attempt to commit rape] . The maximum permissible punishment for the offence as per Sec.452 of the IPC could extend only upto 7 years, and that therefore going by the prescriptions in Sec.167(2) proviso of the Cr.P.C., the default bail period in the matter of submission of final report/charge sheet is 60 days from the date of remand, which has already expired. Further that the only other remaining non bailable offence in the instant case, viz, Sec.511 of 376 of the IPC dealing with attempt to commit the offence of rape and that as per Sec.376(1) of the IPC the punishment for the offence of rape could B.A. No. 5219 of 2019 ..5.. be rigorous imprisonment of either description for a term which shall not be less than 10 years, but may extent to imprisonment for life, and shall also will be liable for fine, etc. As per Sec.511 of the IPC, provides for punishment for committing offence punishable with imprisonment for life or other imprisonment, and it is stipulated therein that whoever attempts to commit an offence punishable under the Indian Penal Code, with imprisonment for life or to cause such an offence to be committed and in such attempt does any act towards the commission of offence shall where no express provision is made in the Code for punishment for such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. Further Sec.57 of the IPC deals with, fraction of terms of punishment and it stipulates therein that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. B.A. No. 5219 of 2019 ..6.. 5. If that be so, the maximum permissible punishment for the offence of attempt to commit rape as per Sec.511 of 376 of the IPC could be extended upto 10 years. That the Apex Court in the three Judges' Bench decision in _**Rakesh Kumar Paul v. State of Assam**_ in _**(2017) 15 SCC 67**_ has held that where the term of imprisonment as punishment for an offence could extent only upto 10 years, then the default period for filing of the final report/charge sheet in terms of the prescriptions contained in Sec.167(2) of the Cr.P.C., shall be 60 days and not 90 days. Since that is the indisputable legal position, the investigating agency should have filed the final report/charge sheet in the instant cast at least within a maximum period of 60 days from the date of remand, ie, 5.5.2019. And that the said maximum period of 60 days has already lapsed on 5.7.2019, and that since the investigating agency has not so far filed the final report/charge sheet in the instant case even now, the petitioner has secured the right for statutory default bail in terms of the prescriptions contained in the proviso to Sec.167(2) of the Cr.P.C., etc. 6. On the query made by this Court, the learned B.A. No. 5219 of 2019 ..7.. Prosecutor has submitted that, so far the investigating agency has not filed the final report/charge sheet in the instant case. 7. The only two non bailable offences in this case are those under Sec. 452 & Sec.511 of Sec.376 of the IPC. There cannot be any dispute that the maximum permissible punishment by way of imprisonment for the offence as per Sec.452 is only upto 7 years, and therefore the default period for the filing of final report/charge sheet is 60 days from the date of remand. So also, the maximum permissible punishment for the offence of attempt to commit rape could be one-half of twenty years going by the prescriptions contained in Secs.376 r/w 511 and Sec.57 of the IPC. Since that is the position, the maximum punishment by way of imprisonment could be extended only upto 10 years. Therefore, going by the dictum laid down by the three Judges' Bench of the Apex Court in the celebrated case in _**Rakesh Kumar Paul v. State of Assam**_ in _**(2017) 15 SCC 67**_ the default period for filing of the final report/charge sheet for the offence as per Sec.511 of 376 of the IPC is also 60 days, which has already expired. 8. Since even the prosecution has stated that the ..8.. B.A. No. 5219 of 2019 investigating agency has not so far filed the final report/charge sheet in the instant crime, it is only to be held and declared that the petitioner is now entitled for the benefit of statutory default bail going by prescriptions contained in proviso to Sec.167(2) of the Cr.P.C. Hence it is for the petitioner to immediately move an appropriate application before the jurisdictional Magistrate Court concerned, for the benefit of statutory default bail, and the said Court may consider the said plea and pass necessary orders in the light of the observations given herein above. However the said Court may also ensure that, appropriate conditions are also placed as safeguards as conditions in the grant of bail. With these observations and directions, the above Bail Application will stand disposed of. ALEXANDER THOMAS, JUDGE MMG