Kerala High Court
Omanakuttan Pillai vs State Of Kerala on 31 October, 2003
Equivalent citations: 2004CRILJ3453, 2003(3)KLT1173
Author: K. Padmanabhan Nair
Bench: K. Padmanabhan Nair
ORDER K. Padmanabhan Nair, J.
1. This is a petition filed under Section 439 of the Code of Criminal Procedure for regular bail.
2. The petitioner is accused No. 12 in Crime No. 118 of 2003 registered under Sections 302, 307, 326, 273, 201, 120(B) of Indian Penal Code and Sections 57(A), 55(a), (h) & (i) and 58 of the Abkari Act of Anchalummoodu Police Station, which is known as "Kuppana Hooch Tragedy" and is being investigated by Crime Branch CID, Special Investigation Group-I, Thiruvananthapuram and renumbered the crime as Crime No. 104/CR/SI/2003.
3. On 10.4.2003 and 11.4.2003 a large number of persons consumed illicit liquor. Seven persons died and seven other persons suffered partial loss of sight due to the consumption of that illicit liquor which was mixed with methyl alcohol. The counsel for the petitioner has argued that the petitioner's case is having no connection with the Kuppana Hooch Tragedy and there is no allegation against the petitioner that he is responsible for the offences under Sections 302, 326, 273, 201, 120(B) of Indian Penal Code.
4. It is true that the prosecution has no case that the petitioner is involved in mixing methyl alcohol with the spirit and hence he is to be prosecuted for the offence under the I.P.C. A perusal of the Case Diary made available shows that one Edison is regularly bringing spirit from other States and from Edison the petitioner was purchasing the same and supplying to the second accused. There are materials to show that the petitioner supplied 350 litres of illicit spirit which he got from accused No. 13. From that quantity, 105 litres were supplied to accused No. 1 Thambi and the same was used for preparing illicit liquor. It is true that the petitioner was arrested on 26.5.2003 and is under judicial custody.
5. The petitioner, relying on the decision reported in Uday Mohanlal Acharya v. State of Maharashtra (AIR 2001 SC 1910) has argued that since the final report was not filed within the period specified under Section 167(2) of the Code of Criminal Procedure, the petitioner has an indefeasible right to be released on bail and the subsequent filing of the final report will not take away that right. It is argued that the petitioner was illegally arrested on 11.5.2003 and is under judicial custody and he is entitled to be released on bail on 11.7.2003. It is argued that 'A' charge against eight accused were filed on 11.7.2003 and 'B' charge was filed only on 30.7.2003. It is argued that on 11.7.2003 an indefeasible right to be released was accrued to the petitioner and since 'B' charge was filed on 30.7.2003, he is entitled to be released on bail.
6. The learned Public Prosecutor has argued that the principle laid down in Uday Mohanlal Acharya's case (supra) can have no application to the facts of this case. It is also argued that the contention of the petitioner that he was arrested on 11.5.2003 is not correct and he was arrested only on 26.5.2003. The petitioner was arrested on 26.5.2003 and produced before the learned Magistrate on 27.5.2003 and was remanded. Infact that fact is admitted by the petitioner in the petition itself. Though in paragraph 8 it is alleged that the petitioner was taken into custody by the police on 11.5.2003, in paragraph 10 it is admitted that the petitioner was produced before the learned Magistrate on 27.5.2003 and the learned Magistrate remanded him to judicial custody. The case of the petitioner is that from 11.5.2003 till 27.5.2003 he was kept under illegal custody and not that the petitioner was under judicial custody from that date onwards. It is argued that 'A' charge was filed before the court on 11.7.2003, but 'B' charge was filed only on 30.7.2003. According to the counsel for the petitioner, even accepting the case of the prosecution as such the right to get default bail accrued to the petitioner on 25.7.2003 as no final report for 'B' charge was filed till that day. The final report for 'B' charge was filed on 30.7.2003. It is argued that the petitioner filed the application for bail on 19.7.2003. That application was adjourned at the request of the Prosecutor and that application was heard and posted for orders to 26.7.2003. It is argued that the bail application was heard and taken up for orders after the expiry of 60 days period. That statement does not appear to be correct. In Chaganti Satyanarayana v. State of A.P. (AIR 1986 SC 2130) the Supreme Court has held that the period of 60 days or 90 days commences only from the date of order of remand passed by the Magistrate. The Code of Criminal Procedure does not contain any provision for calculating the 60 or 90 days. So, the provisions contained in Section 9 of the General Clauses Act is to be applied for calculating the days. So, 27.5.2003 is to be excluded. Then the 60th day will fall on 26.7.2003. On that day, the bail application was heard and posted for orders. The petitioner did not argue for bail under Section 167(2) of the Code of Criminal Procedure on that day. He was not entitled to raise such argument also as the 60 days period was over only on 26.7.2003 and the right to be released under the proviso to Section 167(2) will accrue to the petitioner only on 27.7.2003.
7. The main argument put forward by the learned counsel appearing for the petitioner is that the investigator did not file final report within sixty days from the date of the arrest of the petitioner and as such he is entitled for bail under the proviso to Section 167(2) of the Code of Criminal Procedure. The learned counsel appearing for the petitioner has relied on the decision of the Apex Court in Uday Mohanlal Acharya's case (supra) in which it was held as follows:-
"(iii) 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 furnish the bail, as directed by the Magistrate.
(iv) When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have accrued in his favour on account of default on the part of the Investigating Agency in completion of the investigation within the specified period, the Magistrate/Court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been in filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated."
According to the learned counsel since the final report regarding 'B' charge is filed only on 30.7.2003 after the expiry of the 60 days' period an indefeasible right had accrued to the petitioner and he is entitled to be released on bail. The subsequent filing of the charge-sheet will not take away that right.
8. It is true that the statutory right accrued to an accused shall not be defeated by keeping the application pending till the final reports are submitted so that the right which had accrued is extinguished and defeated. But, that indefeasible right does not survive or remain enforcible on the challan being filed if already not availed of. In Sanjay Dutt v. State through C.B.I. Bombay (II) ((1994) 5 SCC 410) a Constitution Bench has held as follows:-
"The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C. ceases to apply".
It was further held:-
"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".
In Dr. Bipin Shantilal Panchal v. State of Gujarat ((1996) 1 SCC 718) a three Judge Bench held as follows:-
"Therefore, if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet is filed".
In Mohamed Iqbal Madar Sheikh and Ors. v. State of Maharashtra (1999) 1 SCC 772) another Bench of three Judges considered the effect of the proviso to Section 167(2) of the Code of Criminal Procedure. In that case charge-sheet was filed after the expiry of the statutory period. It was held:-
"If an accused charged with any kind of offence becomes entitled to be released on bail under proviso (a) to Section 167(2), that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted so that the right which had accrued is extinguished and defeated".
But in that case the Apex Court held that the accused had forfeited their right to be released on bail under the proviso to Section 167(2) of the Code of Criminal Procedure. It was held:-
"....................... but since no application for bail on the said ground had been made by the accused and the charge-sheet in the meantime, having been filed and cognizance having been taken, the said right cannot be exercised.
The meaning of the expression "if already not availed of" used by the Constitution Bench in Sanjay Dutt's case (supra) is explained in Uday Mohanlal Acharya's case (supra). It was held as follows:-
"(v). If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to Sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and, therefore, if during that period the investigation is complete and charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.
(vi). The expression 'if not already availed of used by this Court in Sanjay Dutt's case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to Sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same".
9. So, the position is clear. The accused must file an application on the expiry of the period and before the filing of the charge sheet to avail the benefit provided under the proviso to Section 167(2) of the Criminal Procedure Code. In this case the petitioner never filed a petition for bail under the default clause either before the learned Magistrate or before the learned Sessions Judge. Even going by the case put forward by the petitioner the time will expire only on 27.7.2003. Infact originally it was alleged that the petitioner had committed an offence punishable under Section 302 I.P.C. It is only after the completion of the investigation he was exonerated from the offence of murder and attempt to murder. One of the grievance raised in this bail application itself is that because of the fact that the prosecution alleged that the petitioner is also answerable for the charge under Sections 302 and 307 of I.P.C. the petitioner was prevented from applying for bail under the default clause on the expiry of sixty days as he was under the impression that such a right will accrue to him only after the expiry of ninety days. Admittedly the bail application before the learned Sessions Judge was filed on 17.7.2003, before the expiry of the sixty days period. So, that cannot be treated as an application under Section 167(2) of Cr.P.C. Even at the time of final hearing of that application no argument was advanced on the ground that in view of the expiry of the sixty days period the petitioner is entitled to statutory bail. The petitioner filed B.A.914 of 2003 before this Court after the filing of the final report. This Court after considering all aspects of the matter dismissed that application as per order dated 2.9.2003. In that application the petitioner had not raised a contention that he is entitled to be released on statutory bail. It is to be noted that B.A.914 of 2003 was filed long after the disposal of B.A.606 of 2003 filed by the 13th accused who was granted statutory bail under the proviso to Section 167(2) of the Code of Criminal Procedure. The petitioner has claimed the benefit under proviso (a) to Section 167(2) of Cr.P.C. for the first time in this application which is filed long after the filing of the final report. Since the petitioner has not claimed that right before the filing of the final report and the preliminary steps for trial has already begun, the petitioner is not entitled to be released on bail under the proviso to Section 167(2) of the Code of Criminal Procedure.
10. The counsel for the petitioner has argued that the only charges levelled against the petitioner are falling under Sections of Abkari Act and not under the provisions of Indian Penal Code. As I have already stated, the petitioner is the person who supplied the spirit which was used for manufacturing illicit arrack. Seven persons died and seven others lost their eye sight. The witnesses in this case are poor people. If bail is granted to the petitioner, there is every chance to influence the witnesses. Further steps for trial has already started. So, I do not find any reason to grant bail to the petitioner. The application is only to be dismissed.
In the result, the bail application is dismissed.