Shyam Kumar P.S. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946 BAIL APPL. NO. 5745 OF 2024 ``` ``` CRIME NO.10/2024 OF TALIPARAMBA FOREST RANGE OFFICE, KANNUR ``` ``` PETITIONER: ``` ``` SHYAM.KUMAR. P.S. AGED 37 YEARS S/O. NARAYANAN, KAPPIMALA, VIJAYAGIRI, ALAKODE AMSOM, KANNUR DT, PIN - 670571 ``` ``` BY ADVS. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI ``` ``` RESPONDENT: ``` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` BY SMT.NEEMA T V, SR.PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.5745 of 2024 ``` ``` 2 ``` ## **`ORDER`** ## **Dated this the 02[nd] day of August, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in O.R No.10/2024 of the Taliparamba Forest Range Office, Kannur, which is registered against him for allegedly committing the offences punishable under Sections 27(I)(e)(iv) of the Kerala Forest Act, 1961, Sections 2(16), 2(35), 9 and 50 of the Wild Life Protection Act, 1972 (Amendment Act, 2022) Arms Act, 1959. The petitioner was arrested and remanded to judicial custody on 03.06.2024. 2. The essence of the prosecution case is that; on 02.06.2024, at around 20.30 hours, while the forest officials were conducting patrolling duty, they found the accused in possession of meat of Sambar ``` B.A.No.5745 of 2024 ``` ``` 3 ``` deer along with a country made gun. The accused was arrested on the spot with the contraband articles. Thus, the accused has committed the above offences. 3. Heard; Sri.V.T.Madhavanunni, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner has been in judicial custody since 03.06.2024, the investigation in the case is not complete and the final report has not been laid. Therefore, the petitioner is entitled to statutory bail as contemplated under Section 167(2) of the Code. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner has ``` B.A.No.5745 of 2024 ``` ``` 4 ``` committed a heinous offence by killing a Samba deer and possessing an unlicenced country made gun. Nonetheless, she did not dispute the fact that the investigation in the case is not complete and the final report has not been laid, although, the petitioner has been in judicial custody for more than 61 days. 6. The prosecution allegation against the petitioner is that, he was found in conscious possession of Sambar deer meat and an unlicenced country made gun. The petitioner was arrested and remanded to judicial custody on 03.06.2024, which is more than 61 days, investigation in the case is not complete and the final report has not been laid. All the offences are punishable for a period up to ten years. 7. 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 ``` B.A.No.5745 of 2024 ``` ``` 5 ``` 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 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— (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; ``` B.A.No.5745 of 2024 ``` ``` 6 ``` (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;] 8. 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) ``` B.A.No.5745 of 2024 ``` ``` 7 ``` 9. In the instant case, as the petitioner has been in judicial custody for the last 61 days, the investigation in the case is not complete, all the offences alleged against the petitioner are punishable for a period up to ten years, and that the Investigating Officer has not laid the final report, 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: ``` B.A.No.5745 of 2024 ``` ``` 8 ``` (i) The petitioner shall appear before the Officer on Investigating every Saturday between 9 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; ``` B.A.No.5745 of 2024 ``` ``` 9 ``` - (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. - (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** NAB