Siyad 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. 5578 OF 2024 ``` ``` CRIME NO.681/2024 OF KARUNAGAPALLY POLICE STATION, KOLLAM PETITIONER/S: ``` ``` SIYAD, AGED 38 YEARS S/O. MUHAMMED KUNJU, BAITH MARIYAM HOUSE,MUZHANGODI MURI, KALLELIBHAGAM VILLAGE,KARUNAGAPPALLY TALUK,KOLLAM., PIN - 690518 BY ADVS. SMT.SAYUJYA SRI.K.R.RAJEEV KRISHNAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY THE SUB-INSPECTOR OF POLICE,KARUNAGAPALLY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` BY SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 02.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.5578 of 2024 ``` ``` 2 ``` ## **`ORDER`** ## **Dated this the 02[nd] day of August, 2024** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhitha, 2023 by the sole accused in Crime No.681 of 2024 of the Karunagapally Police Station, Kollam, which is registered against him for allegedly committing the offences punishable under Sections 341, 294(b), 323, 324, 326 and 307 of the Indian Penal Code, 1860 and Section 27 of the Arms Act. The petitioner was arrested and remanded to on judicial custody 04.05.2024. 2. The essence of the prosecution case is that, on 02.05.2024, the accused had attacked the first informant with a sword and inflicted grievous injuries on him and he lost his right forefinger in the incident. Thus the accused has committed the above offences. ``` 3 ``` ## **`B.A.No.5578 of 2024`** 3. Heard; Smt.Sayujya Radhakrishnan, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the offences under Sections 326 and 307 of the IPC. The Investigating Officer has deliberately incorporated the said offences to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody for the last 91 days, investigation in the case is not complete and the final report has not been laid. Therefore, the petitioner is entitled to statutory bail. The learned Public Prosecutor opposed the application. He submitted that the petitioner is a ``` B.A.No.5578 of 2024 ``` ``` 4 ``` habitual offender since, he is involved in six other crimes of a similar nature. If the petitioner is enlarged on bail, there is every likelihood of him intimidating the witnesses and tampering the evidence. Hence, the application may be dismissed. Nonetheless, he did not dispute the fact the petitioner has been in judicial custody for the last 91 days, investigation in the case is not complete and the final report has not been laid even after a lapse of 90 days. 6. The prosecution allegation against the petitioner is that, on 02.05.2024, he had assaulted the defacto complainant with a sword and inflicted grievous injuries on him. The defacto complainant’s right forefinger got permanently impaired due to the attack. The fact remains that the petitioner has been in judicial custody for the last more than 90 days, investigation in the case is not complete and the final report has not been laid. ``` B.A.No.5578 of 2024 ``` ``` 5 ``` ## 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 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 ``` B.A.No.5578 of 2024 ``` ``` 6 ``` 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;] 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 ``` B.A.No.5578 of 2024 ``` ``` 7 ``` 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) 9. In the instant case, as the petitioner has been in judicial custody for the last 91 days, the investigation in the case is not complete, 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: ``` B.A.No.5578 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.5578 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