Kerala High Court
Vijayakumar vs State Of Kerala on 30 September, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 30TH DAY OF SEPTEMBER 2019 / 8TH ASWINA, 1941
Bail Appl..No.6829 OF 2019
AGAINST THE ORDER IN CRMC 573/2019 DATED 07-09-2019 SESIONS &
MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA
CRIME NO.286/2019 OF Ambalavayal Police Station , Wayanad
PETITIONER/ACCUSED NO.2:
VIJAYAKUMAR
AGED 52 YEARS
S/O MANI,THOTTUVARAMBU HOUSE,NEYYATTINKARA POST AND
VILLAGE,
NOW RESIDING AT MELEPUTHEN HOUSE,
INDUSTRIAL ESTATE,PAPANAMKODE POST,
NEMAM VILLAGE,TRIVANDRUM.
BY ADVS.
SRI.PRATHAP PILLAI
SRI.C.SREEKUMARAN NAIR (CSN)
SRI.H.HARIKUMAR (KOLLAM)
RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.09.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.6829/2019 2
ALEXANDER THOMAS, J.
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B.A.No. 6829 of 2019
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Dated this the 30th day of September, 2019
ORDER
The petitioner herein has been arrayed as the accused No.2 among the two accused in the instant Crime No.286/2019 of Ambalavayal Police Station, Wayanad, which has been registered for offences punishable under Secs.452, 341, 323, 294(b), 354, 354A(2), 354B, 354D(1), 427, 506, 511 of 376, 325 r/w.Sec.34 of the IPC. It is now brought to the notice of this Court by both sides that the petitioner (A2) has been arrested in this case on 31.7.2019 and after his remand, he has been under detention since then. Further, according to the petitioner, the investigation has not so far been completed in this case and the final report/chargesheet has not been filed by the Investigating Officer in the instant crime even now. The offence alleged against the petitioner which carries the maximum awardable sentence is the one as per Section 511 of 376 of the IPC. Section 376 of the IPC deals with punishment for bail and Section 376(1) stipulates that whoever, except in cases provided for in sub-section (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to B.A.No.6829/2019 3 imprisonment for life, and shall also be liable to fine. Section 511 of the IPC deals with punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment and stipulates that whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. Section 57 of the IPC deals with fractions of terms of punishment and it is mandated and stipulated therein that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. Therefore, going by the combined prescriptions in Sections 376, 511 and Section 57 of the IPC, the maximum sentence that could be awarded for the offence of attempt to commit rape (Section 511 of Section 376), would be upto 10 years. Three Judge Bench of Apex Court in the recent celebrated case in Rakesh Kumar Paul v. State of Assam [2017 (15) SCC 67] has held that where the maximum sentence has to be imposed for the offence concerned is upto 10 years, then the B.A.No.6829/2019 4 statutory default bail period would be 60 days and not 90 days, unlike in the case of an offence where the maximum sentence that is awardable is not less than 10 years.
2. In view of the above said conclusive legal position, the statutory default bail period, in terms of the prescriptions contained in the proviso (ii) to Section 167(2) Cr.P.C. would be 60 days from the date of remand of the accused, where the maximum sentence awardable is the one as per Section 511 of Section 376 of the IPC. (see also bail order dated 23.7.2019 in B.A.No.5219/2019 rendered by this Court). If as a matter of fact, the final report/chargesheet in this case has not been filed even till today, then the remedy of the petitioner is to seek statutory default bail in terms of the prescription contained in Section 167(2) of Cr.P.C. If such a statutory default bail application is filed by the petitioner before the jurisdictional Magistrate Court concerned without any further delay, the said Court will deal with the matter and after hearing both sides, will render a considered decision thereon, in the light of the above said findings and directions given herein above.
With these observations and directions, the above bail application will stand disposed of.
sd/-
ALEXANDER THOMAS, JUDGE.
acd