Kerala High Court
Unknown vs Present on 8 January, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941
Bail Appl..No.8318 OF 2019
CRIME NO.81/2019 OF BEKAL POLICE STATION
APPLICANTS/ACCUSED:
1 PEETHAMBARAN A
AGED 48 YEARS
S/O.NARAYANAN, ECHILADUKKAM HOUSE, VENGAYADUKKAM,
PULLUR PERIYA VILLAGE, KASARGOD TALUK-671316.
2 SAJI C.GEORGE @ SAJI
AGED 40 YEARS
S/O.GEORGE C.J., SAURIAM THOTTIYIL VEEDU,
ECHILADUKKAM, PULLUR PERIYA VILLAGE-671316.
3 SURESH.K.M.
AGED 27 YEARS
S/O.RAJAN.K.M., KAVUNGAL VEEDU, ODUVALLI, KOOVERI
VILLAGE, KANNUR, NOW THANNITHODE HOUSE,
ECHILADUKKAM, PULLUR PERIYA VILLAGE-671316.
4 ANIL KUMAR K @ AMBU
AGED 33 YEARS
S/O.KORAGAPPA, ECHILADUKKAM HOUSE, ECHILADUKKAM,
PULLUR PERIYA VILLAGE-671316.
5 GIJIN
AGED 26 YEARS
S/O.A.GANGADHARAN, KALLIYOT HOUSE, KALLIYOT,
P.O.KANHIRADUKKAM, PULLU PERIYA VILLAGE, KASARGOD
TALUK-671531.
6 SREERAG R @ KUTTU
AGED 22 YEARS
S/O.RAVEBBDRAN.K., PLAKA THOTTIYIL HOUSE,
KALLIYOT, PULLUR PERIYA VILLAGE, KASARGOD TALUK-
671316.
7 ASWIN A @ APPU
AGED 19 YEARS
S/O.KUNHIKANNAN, MALANGAD HOUSE, KUNDAMKUZHI,
Bail Appl..No.8318 OF 2019
2
BEDAKAM VILLAGE-671316.
8 MURALI.A.
AGED 36 YEARS
S/O.KUNHIRAMAN NAIR, THANNITHODU HOUSE, NEAR
AYYAPPA BHAJAN MANDIR, PULLUR PERIYA VILLAGE,
KASARGOD TALUK-671316.
9 RANJITH T @ APPU
AGED 24 YEARS
S/O.KUNHI KANNAN, KANNOTH, THANATHINGAL HOUSE,
PERIYA, KANNOTH VILLAGE, HOSDURG TALUK-671316.
10 PRADEEP @ KUTTAN
AGED 32 YEARS
S/O.MADHAVAN, THANITHODU, PULLUR PERIYA VILLAGE,
KASARGOD-671316.
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP (SR.)
SMT.ANUROOPA JAYADEVAN
SHRI.ASHRUTH NASER
RESPONDENT/STATE:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
2 CENTRAL BUREAU OF INVESTIGATION,
THIRUVANANTHAPURAM-695008.
R1BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
R2 BY SRI SASTHAMANGALAM S. AJITH KUMAR
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
16.12.2019, THE COURT ON 08.01.2020 PASSED THE FOLLOWING:
Bail Appl..No.8318 OF 2019
3
R. NARAYANA PISHARADI, J
----------------------------------------------------
B.A No.8318 of 2019
-----------------------------------------------------
Dated this the 8th day of January, 2020
ORDER
Are the petitioners, who are the accused in a case registered for an offence punishable under Section 302 IPC, entitled to 'compulsive bail' under Section 167(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), on the ground that the final report (chargesheet) filed against them by the investigating officer before the expiry of the period of ninety days stipulated under the Code, stands set aside by this Court while passing an order for further/fresh investigation of the case by the Central Bureau of Investigation (CBI)? This is the question to be decided in this application for bail.
2. Two young persons by name Kripesh and Sarath Lal, who were activists of the Youth Congress, were murdered on 17.02.2019. A case was registered as Crime No. 81/2019 of Bekal Police Station regarding the incident. The investigation of the case was conducted by the Deputy Superintendent of Police, Crime Branch. The first accused in the case was arrested on 19.02.2019. The other accused in the case were arrested on subsequent dates. After completing the Bail Appl..No.8318 OF 2019 4 investigation, chargesheet was filed against the accused in the Magistrate's Court concerned on 20.05.2019.
3. The parents of the deceased persons filed a writ petition as W.P(C) No. 10265/2019 before this Court for issuing a direction to entrust the investigation of the case to the CBI. On 30.09.2019, a learned Single Judge of this Court allowed the aforesaid writ petition. The operative portion of the judgment (Annexure-II) in the aforesaid writ petition reads as follows:
"In the result, this Writ Petition stands allowed and the investigation in Crime No. 75/CB/KNR & KSD/2019 of Crime Branch, Kasargod (Crime No. 81 of 2019 of Bekal Police Station) stands transferred to the Central Bureau of Investigation, setting aside the final report already filed. The Superintendent of Central Bureau of Investigation shall take over and continue the investigation forthwith, in accordance with law".
4. The petitioners, who are the accused 1 to 7 and 9 to 11 in the case, have filed this petition for default bail under Section 167(2) of the Code on the ground that there is no chargesheet now in existence against them in view of Annexure-II judgment.
5. Heard Sri.Gopalakrishna Kurup, learned Senior Counsel for the petitioners and also Sri. Suman Chakaravarthy, learned Senior Bail Appl..No.8318 OF 2019 5 Public Prosecutor. Heard also Sri. Sasthamangalam S. Ajithkumar, learned Standing Counsel for the CBI.
6. Learned Senior Public Prosecutor informed this Court that the State has filed appeal against Annexure-II judgment and a Division Bench of this Court has heard the appeal and reserved the judgment in the appeal. Therefore, the learned Senior Public Prosecutor prayed for adjourning the hearing of the bail application after delivery of the judgment by the Division Bench in the appeal. However, learned Senior Counsel for the petitioners submitted that the accused have been in jail for a very long period and therefore, the bail application may be heard without waiting for the judgment of the Division Bench in the appeal. He has also invited attention of this Court to the fact that, earlier on two occasions, the bail application was adjourned on the aforesaid ground. At the request of the learned Senior Counsel for the petitioners, this Court had heard the bail application without waiting for pronouncement of the judgment of the Division Bench in the appeal filed by the State against Annexure-II judgment.
7. Sri.Sasthamangalam S. Ajithkumar, learned Standing Counsel for the CBI, submitted that though the CBI has taken over the investigation and re-registered the case as per a new first information Bail Appl..No.8318 OF 2019 6 report, as per the direction made by the Division Bench of this Court, it has not so far commenced the investigation of the case.
8. Learned Senior Counsel for the petitioners contended that the chargesheet filed by the Crime Branch now stands set aside by Annexure-II judgment and therefore, there is no chargesheet against the accused in existence now and hence, the petitioners are entitled to get default bail under Section 167(2) of the Code.
9. Per contra, learned Senior Public Prosecutor contended that Annexure-II judgment has not become final and therefore, the petitioners are not entitled to get default bail. He has also submitted that once chargesheet is filed by the investigating officer, before the expiry of the period prescribed under Section 167(2) of the Code, the right of the accused to get default bail stands extinguished. He would contend that the right of the accused will not get revived merely for the reason that the chargesheet has been quashed or set aside by this Court while entrusting the investigation of the case to another agency.
10. The proviso to Section 167(2) of the Code states that, the Magistrate may authorise the detention of the accused person, otherwise than in the 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 Bail Appl..No.8318 OF 2019 7 in custody for a total period exceeding 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 and, on the expiry of the said period of ninety days the accused person shall be released on bail if he is prepared to and does furnish bail.
11. Once a person is arrested by the police during the investigation of a case, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by proviso (a) to Section 167(2) of the Code. There shall be a sense of urgency to complete the investigation within the prescribed time. The consequence of delay in completing the investigation is the release of the accused on bail. The investigating officer or agency shall take the task of investigation seriously. This appears to be the legislative intention of the provision contained in the proviso to Section 167(2) of the Code.
12. In Sanjay Dutt v. State : (1994) 5 SCC 410, the Constitution Bench of the Supreme Court 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 it 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 Bail Appl..No.8318 OF 2019 8 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 Cr.P.C. 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".
13. Vipul Shital Prasad Agarwal v. State of Gujarat : AIR 2013 SC 73, was a case where the Supreme Court entrusted the investigation of a case to the C.B.I, after the filing of the chargesheet by the State C.I.D. Pursuant to the directions given by the Apex Court, the C.B.I. registered a separate F.I.R and commenced investigation of the case. On behalf of the accused, it was contended that he was entitled to the benefit of statutory bail in terms of Section 167(2) of the Code on the ground that after registering a fresh F.I.R. and commencing of fresh investigation, as directed by the Apex Court, the C.B.I. had failed to file charge-sheet pursuant to such F.I.R within the stipulated period of 90 days. It was contended on behalf of the accused that since the earlier investigation by the State police had not been accepted by the Apex Court and the C.B.I was directed to conduct a fresh investigation, it would necessarily entail that the Bail Appl..No.8318 OF 2019 9 charge-sheet filed on the basis of the initial investigation was also rejected by that Court, though not in explicit terms. It was further contended that there could not be two charge-sheets arising out of the two F.I.Rs in respect of a single incident and charge would have to be framed on the basis of one of the said two charge-sheets filed and, since the first investigation had not been accepted, the logical consequence would be that the first charge-sheet also stood quashed which would give the second charge-sheet due legitimacy. The Supreme Court rejected the aforesaid contentions and held as follows:
"One of the most significant features of this case is that the prayer for default bail was made on behalf of the petitioner in F.I.R.No.115 of 2006, lodged by the local police with the Ambaji Police Station, though the submissions in respect thereof have been made in connection with the subsequent F.I.R lodged by the C.B.I. It is obvious that the petitioner was fully aware of the situation while making the application for grant of bail, knowing that he was under arrest in connection with the first F.I.R and not under the second F.I.R lodged by the C.B.I. In the event the second investigation is treated to be a fresh investigation and the petitioner had been arrested in connection therewith, the submissions made by Mr. Sushil Kumar would have been relevant. However, since the prayer for default bail was made in connection with F.I.R.No.115 of 2006, in which charge-sheet had been filed within the stipulated period of 90 days, the argument with regard to the default bail was not available to the Bail Appl..No.8318 OF 2019 10 petitioner and such argument has, therefore, to be rejected. The other submission of Mr. Sushil Kumar that since a fresh investigation was directed to be conducted by this Court, the earlier charge -sheet must be deemed to have been quashed, has to be rejected also on the same ground".
It was also held that:
"The mere undertaking of a further investigation either by the Investigating Officer on his own or upon the directions of the superior police officer or pursuant to a direction by the concerned Magistrate to whom the report is forwarded does not mean that the report submitted under Section 173(2) is abandoned or rejected. ..... Even the fact that the CBI purported to have registered a 'fresh F.I.R', in my opinion, does not lead to conclusion in law that the earlier report or the material collected by the Gujarat Police (CID) on the basis of which they filed the charge-sheet ceased to exist. It only demonstrates the administrative practice of the CBI".
Of course, in the case on hand, the learned Single Judge who delivered Annexure-II judgment has specifically ordered that the final report already filed shall stand set aside.
14. Suresh Kumar Bhikamchand Jain v. State of Maharashtra : (2013) 3 SCC 77 was a case in which, although charge-sheet had been filed within the time stipulated under Section 167(2) of the Code, sanction to prosecute the accused had not been obtained and as a result whereof, no cognizance was taken of the Bail Appl..No.8318 OF 2019 11 offence. Notwithstanding the above, remand orders continued to be made against the accused. The plea for granting statutory bail to the accused was opposed by the State on the ground that, with the filing of the charge-sheet under Section 167(2) of the Code, the conditions of the said Section stood satisfied and even if sanction had not been obtained for prosecuting the accused, the trial court was entitled to proceed further in the matter and that the orders of remand passed by the trial court were not vitiated since charge-sheet had already been filed within 90 days of the arrest of the accused. The Supreme Court rejected the plea of the accused, holding as follows:
"From the above dates, it would be evident that both the charge-sheet as also the supplementary charge- sheet were filed within 90 days from the date of the petitioner's arrest and remand to police custody. It is true that cognizance was not taken by the Special Court on account of failure of the prosecution to obtain sanction to prosecute the accused under the provisions of the PC Act, but does such failure amount to non- compliance of the provisions of Section 167(2) Cr.P.C. is the question with which we are confronted. In our view, grant of sanction is nowhere contemplated under Section 167 Cr.P.C. What the said Section contemplates is the completion of investigation in respect of different types of cases within a stipulated period and the right of an accused to be released on bail on the failure of the investigating authorities to do so. ........ In our view, the filing of charge Bail Appl..No.8318 OF 2019 12
- sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 Cr.P.C. is concerned. The right which may have accrued to the petitioner, had charge - sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 Cr.P.C., it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 Cr.P.C. The scheme of the Cr.P.C. is such that once the investigation stage is completed, the Court proceeds to the next stage, which is the taking of cognizance and trial. .... Having regard to the above, we have no hesitation in holding that notwithstanding the fact that the prosecution had not been able to obtain sanction to prosecute the accused, the accused was not entitled to grant of statutory bail since the charge-sheet had been filed well within the period contemplated under Section 167(2)(a)(ii) Cr.P.C".
15. Learned senior counsel for the petitioners referred to the decisions in Uday Mohanlal Acharya v. State of Maharashtra :
AIR 2001 SC 1910 and Dinesh Dalmia v. C.B.I : AIR 2008 SC 78 to buttress his contention that the petitioners are entitled to get statutory bail. In Uday Mohanlal Acharya, the principle is reiterated that on the expiry of the 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 Bail Appl..No.8318 OF 2019 13 agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail. Dinesh Dalmia (supra) rather gives support to the contention of the learned Senior Public Prosecutor that the petitioners are not entitled to get statutory bail. It has been held in that decision as follows:
"Concededly, the investigating agency is required to complete investigation within a reasonable time. The ideal period therefore would be 24 hours, but, in some cases, it may not be practically possible to do so. The Parliament, therefore, thought it fit that remand of the accused can be sought for in the event investigation is not completed within 60 or 90 days, as the case may be. But, if the same is not done with the stipulated period, the same would not be detrimental to the accused and, thus, he, on the expiry thereof would be entitled to apply for bail, subject to fulfilling the conditions prescribed therefore. Such a right of bail although is a valuable right but the same is a conditional one; the condition precedent being pendency of the investigation. Whether an investigation in fact has remained pending and the investigating officer has submitted the charge sheet only with a view to curtail the right of the accused would essentially be a question of fact. ..... Whereas only when a charge sheet is not filed and investigation is kept pending, benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation Bail Appl..No.8318 OF 2019 14 remains pending within the meaning of sub-section (8) of Section 173 of the Code".
(emphasis supplied).
16. On a reading of the provisions contained in Section 167(2) of the Code, it can be found that the only contingency under which the accused gets right to be released on bail under that provision is the non-filing of the final report by the investigating officer within the period of sixty/ninety days, as the case may be. Once the chargesheet is filed within the stipulated period, the right of the accused stands extinguished. In my view, such a right, does not get revived merely for the reason that the court has set aside or quashed the final report.
17. In the instant case, the chargesheet was filed by the Crime Branch within the period of ninety days in the Magistrate's Court concerned. Learned Magistrate took cognizance of the offences and after complying with necessary formalities, committed the case to the Court of Session. Once the investigating agency files the chargesheet within the prescribed period, the right of the accused to get default bail under Section 167(2) of the Code ceases. Such a right will not get revived merely for the reason that, while passing an order entrusting the investigation of the case to the CBI, this Court has set aside the final report.
Bail Appl..No.8318 OF 2019 15
18. The question can be considered from another angle. Suppose, the petitioners are now granted bail under Section 167(2) of Cr.P.C on the ground that the chargesheet filed by the investigating officer is not in existence in view of Annexure-II judgment. Suppose, tomorrow, if the Division Bench of this Court set aside the order of the learned Single Judge and restores the chargesheet filed by the Crime Branch, can the accused be re-arrested and committed to custody? Can the bail now granted to the accused be cancelled merely on the ground that the chargesheet stands restored by the judgment of the Division Bench? In my view, the answer is in the negative. Once an accused is released on bail under Section 167(2) of the Code, he cannot be re-arrested by cancelling the bail, merely on the filing of the charge-sheet. Bail once granted cannot be cancelled on mere filing of the charge-sheet. The law mandates that once an accused is released under Section 167(2) of the Code, he would be deemed to have been released under provisions of Chapter XXXIII of the Code. Once the order of release is by fiction of law an order passed under Section 437(1) or 437(2) or 439(1) of the Code, it follows as a natural consequence that the said order can be cancelled only under sub-section (5) of Section 437 or sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder and not Bail Appl..No.8318 OF 2019 16 otherwise. The fact that the bail was earlier secured by the thrust of proviso (a) to Section 167(2) of the Code then recedes in the background. Once the accused has been released on bail his liberty cannot be interfered with lightly on the ground that the prosecution has subsequently submitted a charge sheet (See Aslam Babalal Desai v. State of Maharashtra: AIR 1993 SC 1).
19. Annexure-II judgment has not become final. The State has filed appeal against Annexure-II judgment. The Division Bench of this Court has heard the appeal and reserved the judgment in the appeal. Before Annexure-II judgment attains finality, it cannot be found that the chargesheet filed against the accused has permanently gone or vanished. The non-existence of the chargesheet against the accused during the interregnum does not inure to the accused to claim default bail under Section 167(2) of the Code.
20. In the aforesaid circumstances, I find that the petitioners are not entitled to get default bail. The petition is liable to be dismissed.
In the result, the petition is dismissed.
R. NARAYANA PISHARADI JUDGE lsn Bail Appl..No.8318 OF 2019 17 APPENDIX ANNEXURE-I: COPY OF THE ORDER DATED 31.10.2019 BY THE SESSIONS COURT, KASARGOD.
ANNEXURE-II: COPY OF THE JUDGMENT IN WP(C) 10265 OF 2019 DATED 30.09.2019.
ANNEXURE-III: COPY OF THE ORDER DATED 13.06.2019 IN BAIL APPLICATION 3291 OF 2019.
ANNEXURE-IV: COPY OF THE ORDER DATED 11.07.2019 IN CRL.M.P.NO.2230/2019.
RESPONDENT'S/S EXHIBITS:
ANNEXURE R1 A TRUE COPY OF THE ORDER DATED 7/8/2019 IN BA NO-5421/2019 TRUE COPY P.A TO JUDGE LSN