Sudheer A. v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 7[TH] DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 ``` ``` BAIL APPL.NO.3715 OF 2024 ``` ``` CRIME NO.350/2024 OF Peroorkada Police Station, ``` ## **`Thiruvananthapuram`** ``` ---------------- ``` ## **`PETITIONER/ACCUSED No.2 :-`** ``` SUDHEER A., AGED 48 YEARS S/O.ABDUL KARIM, PRAKKATHERI PUTHEN VEEDU, PARASUVAICKAL VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN - 695 508 ``` ``` BY ADVS. ARUN CHAND VINAYAK G MENON BHARAT VIJAY P. THAREEQ ANVER K. MINU VITTORRIA PAULSON NEETHU S. ``` ## **`RESPONDENT/STATE :-`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031`** - **`2 THE STATION HOUSE OFFICER, PEROORKADA POLICE STATION, DEVAPALAN NAGAR, THIRUVANANTHAPURAM, PIN - 695 013`** ``` BY SMT.NEEMA T.V., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.3715 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R Dated this the 7 th day of June, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.350/2024 of the Peroorkada Police Station, Thiruvananthapuram, which is registered against the accused (6 in number), for allegedly committing the offences punishable under Sections 120(B), 468, 471, 341, 366, 357, 354, 354(A), 354(D), 506(ii), 109 and 201 r/w Section 34 of the Indian Penal Code and Section 27 of the Arms Act. The petitioner was arrested and remanded to judicial custody on 08.03.2024. 2. The gist of the prosecution case is that; on 07.03.2024, at around 8 hrs., the accused, in furtherance of this common intention, forcefully abducted the de facto complainant in a car and took her to a place of confinement and outraged her modesty inside the car. The first accused also criminally intimidated the victim and put her on the fear of death. Subsequently, they took her to a ``` BAIL APPL.NO.3715 OF 2024 ``` ``` -: 3 :- ``` rented house in Tamil Nadu and the first accused forcefully married her under gun point and again outraged her modesty. Thus, the accused have committed the above offences. 3. Heard; Sri.Arun Chand K., the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor appearing for the respondents. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of the First Information Report would show that the specific overt acts are alleged against the first accused, who has committed the offence under Section 354 of the IPC. In any given case, the petitioner has been in judicial custody for the last 91 days, the investigation in the case is not complete and final report has not been laid. Therefore, the petitioner is entitled to the benefit of statutory bail as contemplated under Section 167(2) of the Cr.P.C. Therefore, the application may be allowed. ``` BAIL APPL.NO.3715 OF 2024 ``` ``` -: 4 :- ``` 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in She also stated that the accused have progress. committed a heinous crime by abducting the victim and outraging her modesty at gun point. If the petitioner is released on bail, certainly he would intimidate the witnesses and tamper with the evidence. Moreover, the petitioner is a Police Officer. Therefore, there is every chance of the petitioner tampering with the evidence and intimidate the witnesses. Hence, the application may be dismissed. However, she did not dispute the fact that the Investigating Officer has not laid the final report even after the lapse of 90 days. 6. The prosecution allegation is that; the accused, in furtherance of their common intention, had abducted the victim and taken her to a place in Tamil Nadu and outraged her modesty at gun point. The specific overt act is alleged against the first accused for having indulged in the above acts. The main allegation against the petitioner ``` BAIL APPL.NO.3715 OF 2024 ``` ``` -: 5 :- ``` is that he was accompanying the other accused with the victim in a car. The fact remains that the petitioner was arrested and remanded to judicial custody on 08.03.2024 and that the Investigating Officer has not laid the final report even after the lapse of 91 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 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: ``` BAIL APPL.NO.3715 OF 2024 ``` ``` -: 6 :- ``` 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 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.] ``` BAIL APPL.NO.3715 OF 2024 ``` ``` -: 7 :- ``` [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.] 8. Interpreting sub-section (ii) of Section 167 of the ## Code, the Constitutional Bench of the Honourable v Supreme Court in **Sanjay Dutt 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 ``` BAIL APPL.NO.3715 OF 2024 ``` ``` -: 8 :- ``` 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) 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 has been in judicial custody for the last 91 days and the Investigating Officer has not laid the final report till date. Hence, I hold that the petitioner is entitled to be released on statutory ``` BAIL APPL.NO.3715 OF 2024 ``` ``` -: 9 :- ``` 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.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 on - Investigating Officer 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 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 while he is on bail; - (iv) The petitioner shall surrender his passport, if any, before the court below at the time of ``` BAIL APPL.NO.3715 OF 2024 ``` ``` -: 10 :- ``` execution of the bond. If he has no passport, he shall file 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 filed and entertained before 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** Jvt/7.6.2024 ``` BAIL APPL.NO.3715 OF 2024 ``` ``` -: 11 :- ``` ## **`APPENDIX OF BAIL APPL. 3715/2024`** ## **`PETITIONER ANNEXURES :-`** - **`Annexure A1 THE TRUE COPY OF THE ORDER DATED 05/04/2024 IN CRL M.C. NO.867/2024 PASSED BY THE SESSIONS COURT, THIRUVANANTHAPURAM`** - **`Annexure A2 THE TRUE COPY OF THE COMMON ORDER DATED 27/04/2024 IN CRL M.C. NO.974/2024 PASSED BY THE SESSIONS COURT, THIRUVANANTHAPURAM`** - **`Annexure A3 THE TRUE COPY OF THE TREATMENT CERTIFICATE DATED 11/03/2023 ISSUED BY DR. MANJU THAMPI, CHIEF CONSULTANT NEPHROLOGIST, NIMS, THIRUVANANTHAPURAM`**