Shon A.V v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2284 OF 2024 ``` ``` CRIME NO.61/2023 OF PALAKKAD TOWN SOUTH POLICE STATION, ``` ## **`PALAKKAD`** ## **`PETITIONER/2ND ACCUSED:`** ``` SHON A.V, AGED 39 YEARS S/O. VIDHYADHARAN A.R., AYNIPPILY HOUSE, THATTAPPARAMBU ROAD, PALLURUTHY P.O., KOCHI, PIN - 682006 ``` ``` BY ADVS. BOBBY RAPHEAL.C E.C.POULOSE ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PUBLIC PROSECUTOR SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2284 of 2024** ``` 2 ``` **Dated this the 8[th] day of April, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.61/2023 of the Palakkad Town South Police Station, Palakkad, registered against the accused (3 in number) for allegedly committing the offences punishable under Sections 406 and 420 r/w Section 34 of the Indian Penal Code and Section 4 r/w Section 22, Section 5 r/w Section 23 of the Banning of Unregulated Deposit Schemes Act. The petitioner was arrested in Crime No.1159/2022 of the Thrikkakara Police Station, Ernakulam on 2.12.2023. The petitioner’s formal arrest was recorded in the present crime on **B.A. No.2284 of 2024** ``` 3 ``` ## 6.1.2024. 2. The crux of the prosecution case, is that; the accused, in furtherance of their common intention, made the de facto complainant to invest money in’ Masters Finsearch’, which was conducted by the first accused with the licence of the second accused and made the defacto complainant to invest money in the share market assuring him profit every month. However, the accused failed to give any profit or return the capital. Thus, the accused have committed the above offences. 3. Heard; Sri. Bobby Raphel C., learned counsel appearing for the petitioner and Smt. Seetha S. the learned Senior Public Prosecutor. 4. The learned counsel appearing 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 ``` 4 ``` ## **B.A. No.2284 of 2024** originally arrested as early as on 2.12.2023. The petitioner has been enlarged on bail in all the cases that have been registered against him as evidenced by Annexures A1 to A29 orders. The petitioner’s formal arrest was recorded in the present crime on 6.1.2024. The petitioner has been in judicial custody since 6.1.2024. Therefore, the petitioner is entitled to be released on statutory bail as contemplated under subsection (ii) of Section 167 of the Code of Criminal Procedure ( in short, ‘Code’), since the final report has not been filed till date. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner is a person with criminal antecedents The petitioner is involved in several other cases of similar nature in different police stations. If the petitioner is released on ``` 5 ``` ## **B.A. No.2284 of 2024** bail, there is every likelihood of him committing a similar offence. Nonetheless, the learned Public Prosecutor conceded to the fact that the petitioner has been in judicial custody since 6.1.2024, the investigation in the case is not complete and the final report has not been laid, even though the statutory period to file the same has already lapsed. 6. In the case on hand, indisputably, the petitioner was arrested on 6.1.2024. All the offences alleged against the petitioner are punishable for a period of less than ten years. However, the Investigating Officer has not filed the final report even after the lapse of 60 days. 7. Subsection (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 **B.A. No.2284 of 2024** ``` 6 ``` 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 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, 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 **B.A. No.2284 of 2024** ``` 7 ``` 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. [Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.] [Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] [Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.] **B.A. No.2284 of 2024** ``` 8 ``` 8. Interpreting sub-section (ii) of Section 167 of the Code, the Constitutional Bench of the Honourable Supreme Court in **Sanjay Dutt v.State through C.B.I., Bombay** [(1994) 5 SCC 410] has observed as follows:- "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." **B.A. No.2284 of 2024** ``` 9 ``` 9. 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) 10. In the instant case, as the petitioner was arrested on 6.1.2024, which is more than 90 days, the investigation in the case is not complete and the final report has not been laid, even though the offences alleged against the petitioner are punishable for a period of less than ten years, I hold that the petitioner is entitled to be released on statutory bail, since it is his **B.A. No.2284 of 2024** ``` 10 ``` 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 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 them 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 **B.A. No.2284 of 2024** ``` 11 ``` while he is on bail; (iv) 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. (v) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. (vi) 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/-** rmm/8/4/2024 **C.S.DIAS, JUDGE** **B.A. No.2284 of 2024** ``` 12 ``` ## **`APPENDIX OF BAIL APPL. 2284/2024`** ## **`PETITIONER ANNEXURES`** ``` Annexure A-1CERTIFIED COPY OF THE ORDER DATED 17/2/2024 IN CRL. M.C. NO. 876/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE III, PALAKKAD ``` - **`Annexure A-2 CERTIFIED COPY OF THE ORDER DATED 11/3/2024 IN CRL. M.C. NO. 1439/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE III, PALAKKAD. ( IN ANNEXURE A-2 ORDER, IN THE CAUSE TITLE THE CASE NUMBER IS WRONGLY MENTIONED AS CRL. M.C. NO. 876/2024 INSTEAD OF CRL. M.C. NO. 1439/2024, WHICH CAN BE EVIDENCED FROM THE DOCKET OF THE ORDER. )`** - **`Annexure A3 TRUE COPY OF THE ORDER DATED 6/12/2023 IN CRL. M.P. NO. 5337/2023 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A4 TRUE COPY OF THE ORDER DATED 6/12/2023 IN CRL. M.P. NO. 5338/2023 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A5 TRUE COPY OF THE ORDER DATED 21/12/2023 IN CRL. M.P. NO. 5916/2023 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A6 TRUE COPY OF THE ORDER DATED 21/12/2023 IN CRL. M.P. NO. 5917/2023 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A7 TRUE COPY OF THE ORDER DATED 21/12/2023 IN CRL. M.P. NO. 5919/2023 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** ## **B.A. No.2284 of 2024** ## **`13`** |**`Annexure A8`**|**`TRUE COPY OF THE ORDER DATED 21/12/2023`**| |---|---| ||**`IN CRL. M.P. NO. 5920/2023 OF ADDL.`**| ||**`DISTRICT`**<br>**`AND`**<br>**`SESSIONS`**<br>**`JUDGE-VII,`**| ||**`ERNAKULAM`**| |**`Annexure A9`**|**`TRUE COPY OF THE ORDER DATED 28/12/2023`**| ||**`IN CRL. M.P. NO. 5583/2023 OF ADDL.`**| ||**`DISTRICT`**<br>**`AND`**<br>**`SESSIONS`**<br>**`JUDGE-VII,`**| ||**`ERNAKULAM`**| |**`Annexure A10`**|**`TRUE COPY OF THE ORDER DATED 28/12/2023`**| ||**`IN CRL. M.P. NO. 5918/2023 OF ADDL.`**| ||**`DISTRICT`**<br>**`AND`**<br>**`SESSIONS`**<br>**`JUDGE-VII,`**| ||**`ERNAKULAM`**| |**`Annexure A11`**|**`TRUE COPY OF THE ORDER DATED 28/12/2023`**| ||**`IN CRL. M.P. NO. 5582/2023 OF ADDL.`**| ||**`DISTRICT`**<br>**`AND`**<br>**`SESSIONS`**<br>**`JUDGE-VII,`**| ||**`ERNAKULAM`**| |**`Annexure A12`**|**`TRUE COPY OF THE ORDER DATED 28/12/2023`**| ||**`IN CRL. M.P. NO. 5584/2023 OF ADDL.`**| ||**`DISTRICT`**<br>**`AND`**<br>**`SESSIONS`**<br>**`JUDGE-VII,`**| ||**`ERNAKULAM`**| |**`Annexure A13`**|**`TRUE COPY OF THE ORDER DATED 28/12/2023`**| ||**`IN CRL. M.P. NO. 5581/2023 OF ADDL.`**| ||**`DISTRICT`**<br>**`AND`**<br>**`SESSIONS`**<br>**`JUDGE-VII,`**| ||**`ERNAKULAM`**| |**`Annexure A14`**|**`TRUE COPY OF THE ORDER DATED 28/12/2023`**| ||**`IN CRL. M.P. NO. 5580/2023 OF ADDL.`**| ||**`DISTRICT`**<br>**`AND`**<br>**`SESSIONS`**<br>**`JUDGE-VII,`**| ||**`ERNAKULAM`**| |**`Annexure A15`**|**`TRUE COPY OF THE ORDER DATED 15/1/2024 IN`**| ||**`CRL. M.P. NO. 50/2024 OF ADDL. DISTRICT`**| ||**`AND SESSIONS JUDGE-VII, ERNAKULAM`**| ``` Annexure A16TRUE COPY OF THE ORDER DATED 3/2/2024 IN CRL. M.P. NO. 353/2024 OF ADDL. DISTRICT ``` ## **B.A. No.2284 of 2024** ## **`14`** ``` AND SESSIONS JUDGE-VII, ERNAKULAM ``` - **`Annexure A17 TRUE COPY OF THE ORDER DATED 3/2/2024 IN CRL. M.P. NO. 360/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A18 TRUE COPY OF THE ORDER DATED 3/2/2024 IN CRL. M.P. NO. 358/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A19 TRUE COPY OF THE ORDER DATED 3/2/2024 IN CRL. M.P. NO. 361/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A20 TRUE COPY OF THE ORDER DATED 3/2/2024 IN CRL. M.P. NO. 347/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A21 TRUE COPY OF THE ORDER DATED 3/2/2024 IN CRL. M.P. NO. 340/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A22 TRUE COPY OF THE ORDER DATED 3/2/2024 IN CRL. M.P. NO. 356/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A23 TRUE COPY OF THE ORDER DATED 3/2/2024 IN CRL. M.P. NO. 339/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKUKLAM`** - **`Annexure A24 TRUE COPY OF THE ORDER DATED 3/2/2024 IN CRL. M.P. NO. 354/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A25 TRUE COPY OF THE ORDER DATED 3/2/2024 IN CRL. M.P. NO. 355/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** - **`Annexure A26 TRUE COPY OF THE ORDER DATED 3/2/2024 IN CRL. M.P. NO. 341/2024 OF ADDL. DISTRICT AND SESSIONS JUDGE-VII, ERNAKULAM`** ``` 15 ``` ## **B.A. No.2284 of 2024** |**`Annexure A27`**|**`TRUE COPY OF THE ORDER DATED 3/2/2024 IN`**| |---|---| ||**`CRL. M.P. NO. 402/2024 OF ADDL. DISTRICT`**| ||**`AND SESSIONS JUDGE-VII, ERNAKULAM`**| |**`Annexure A28`**|**`TRUE COPY OF THE ORDER DATED 3/2/2024 IN`**| ||**`CRL. M.P. NO. 338/2024 OF ADDL. DISTRICT`**| ||**`AND SESSIONS JUDGE-VII, ERNAKULAM`**| |**`Annexure A29`**|**`TRUE COPY OF THE ORDER DATED 25/3/2024 IN`**| ||**`CRL. M.P. NO. 1213/2024 OF ADDL. DISTRICT`**| ||**`AND SESSIONS JUDGE-VII, ERNAKULAM`**|