IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 399 of 2007()
1. SAJITH, S/O.SUDHAKARAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :16/03/2007
O R D E R
V. RAMKUMAR, J.
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Bail Application No. 399 of 2007
* * * * * * * * * * * * * * * * * *
Dated, this the 16th day of March 2007
ORDER
The petitioner who is the 6th accused in Crime No. 227
of 2005 of Mararikulam Police Station for offences punishable
under Sections 120 B, 109, 115, 307 and 302 read with Sec. 34
I.P.C. seeks his enlargement on bail. The occurrence took place
on 20-7-2005 in which accused Nos. 1 and 2 who are hired
assassins allegedly engaged by A6 and A7 are said to have
dashed a lorry against a Tata Safari Car in which deceased
Ramesh and others were travelling and in that accident Ramesh
and two others were killed. According to the prosecution,
deceased Ramesh who was formerly an employee of accused
Nos. 6 and 7 had dissociated from them and had started a rival
business thrivingly to the envy of accused Nos. 6 and 7 who
planned the “operation road accident”.
2. There are altogether 13 accused persons in the case.
Accused Nos. 1 to 5 and 7 to 10 were arrested during the latter
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half of 2005. The petitioner surrendered before the investigating
officer on 17-11-2006 and on production before the Magistrate,
after interrogation by the police was remanded to judicial
custody where he continues.
3. Opposing the application, Sri. V.K. Mohanan, the learned
Addl. Director General of Prosecutions made the following
submissions before me:-
The investigating agency after completing the investigation
against accused Nos. 1 to 10 had filed the final charge-sheet on
25-10-2005. Thereafter all the 10 accused persons except A6
were committed to the court of Sessions for trial as per the
proceedings of the J.F.C.M.-I, Alappuzha in C.P. 38/2005. Since
the petitioner herein was absconding, the case against him was
re-filed as C.P. 41/05. As the petitioner was evading his
arrest even after the issue of non-bailable warrants of arrest, his
case was transferred to the Long Pending Case Register as L.P.
78/05. Thereafter, consequent on the surrender of the petitioner
before the police and production before the Magistrate on 17-11-
2006, the case against him was re-filed as C.P. 88/06. In the
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meanwhile the investigating agency had commenced further
investigation for the alleged involvement of accused Nos. 11 to
13 who were arrayed as such by filing a supplemental report
before the Magistrate on 23-11-2006. A supplemental charge-sheet
was thereafter filed on 23-12-2006 which was, however, returned as
defective. The right of statutory bail under Section 167 (2)
Cr.P.C. is extinguished when the charge-sheet or final report has
been filed. Merely because the said charge-sheet is returned
for curing certain defects will not entitle the accused to be
released on compulsive bail. (See Guna @ Gunasekharan v.
The State – 1997 Crl. L.J. 626 (Madras) and Velinedipurnam
v. STate – 1994 Crl.L.J. 2579 (Andhra Pradesh). Right to
compulsive bail does not survive after the filing of chellan
(State of M.P. v. Rustam – 1995 (3) SCC 221). The reasons
stated by the Magistrate for returning the supplimentary final report
as defective are not correct. When the original charge-sheet
itself was filed on 25-10-2005 against the petitioner as well
(although shown as absconding) within 90 days, the petitioner
cannot claim the benefit of the proviso to Sec. 167 (2)
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Cr.P.C. for the reason that the supplemental charge-sheet was not
filed within 90 days of the detention of the petitioner.
4. I am afraid that I cannot agree with the above
submissions. It is true that on 25-10-2005, the final report was
filed against accused Nos. 1 to 10 in which the petitioner was
shown as absconding. He was not apprehended by the
investigating agency nor did he appear before the committal court
in C.P. 38/05. In the said final report filed on 25-10-2005, it
was clearly stated as follows:-
”
“”””
Thus, even according to the investigating agency, the investigation
against the 6th accused was not complete as he could not be
apprehended and as and when he was arrested the investigating
agency wanted to interrogate him and conduct further investigation.
There is no dispute that after the petitioner surrendered before
the investigating officer on 17-11-2006 and was interrogated , he
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was produced before the Magistrate along with a remand report
dated 17-11-2006. In the said remand report it was stated
as follows:-
”
.”
xxxx xxxx xxx
:
""
The above statement clearly shows that on interrogation of the
petitioner more information had come to light about his complicity
and police custody of the petitioner was being sought for the
purpose of further investigation and for collection of evidence
on the basis of the statement of the petitioner etc. In the face
of the above statement by the investigating officer, it is idle for
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the prosecution to contend that there was no further investigation
conducted as against the petitioner and that the final report filed
on 25-10-2005 pertained to the petitioner as well. As a matter of
fact, consequent on the remand of the petitioner to judicial custody
with effect from 17-11-2006 onwards his continued detention was
insisted for the reason that further evidence was required to be
collected.
5. When the earlier investigation conducted and the report
filed were behind the back of the petitioner who had not been
arrested, the period of 90 days under the proviso to Sec. 167 (2)
Cr.P.C. had not started running. It is only from 17-11-2006 that
the investigation involving the petitioner was conducted. It is true
that a supplemental charge-sheet after the conclusion of further
investigation was filed on 23-12-2006. But it was admittedly
returned as defective and has not been re-presented so far. In
the letter dated 9-2-2007 from the J.F.C.M.-I, Alappuzha addressed
to the Registrar, High Court of Kerala, he has stated that as on
9-2-2007 the final report submitted was returned due to certain
defects and it has not been re-presented after curing the defects.
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This Bail Application was filed on 18-1-2007 on which date even
according to the prosecution, the supplemental charge was not
before court. Merely because a supplementary final report was
filed and the same was returned as defective, it cannot be
held that the final report was filed within the statutory period
of 90 days. Admittedly, the supplementary final report has not
been re-presented after curing the defects. If it does not suffer
from the defects pointed out by the Magistrate, the investigating
agency could have re-presented the supplementary final report
stating that the defects noted are not really there. Alternatively,
the investigating agency could have challenged the action of the
Magistrate by approaching the superior forum. That also has
not been done. Thus, as on the date of filing of this bail
application, the petitioner had been in custody for more than 90
days without there being any final report filed against him. To
be more precise, as on 15-2-2007, the petitioner completed 90
days.
6. The only provision under which a person can be
detained in custody during the stage of investigation is Sec. 167
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Cr.P.C. The petitioner has been in custody for more than 90
days and the further investigation (which is nothing but a
continuation of the original investigation) which was commenced
after the petitioner surrendered before the investigating officer on
17-11-2006 has not resulted in a supplementary final report so far.
Hence, I am inclined to give the petitioner the benefit of the
proviso to Sec. 167 (2) Cr.P.C. Even otherwise, I do not think
that the continuance of the pre-trial incarceration of the petitioner is
warranted. The apprehensions of the prosecution can be taken
care of by imposing appropriate conditions. The petitioner is
accordingly directed to be released on bail on his executing a
bond for Rs. 50,000/- (Rupees fifty thousand only) with two
solvent sureties each for the like amount to the satisfaction of the
J.F.C.M.-I, Alappuzha and subject to the following conditions:-
1. The petitioner shall report before the
Investigating Officer between 9 a.m. and 11 a.m.
on all Wednesdays until a supplementary final
report is received on the file of the Magistrate.
2. The petitioner shall not enter the territorial
limits of Mararikkulam Police Station until further
orders.
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3. The petitioner shall surrender his passport, if
any, before the J.F.C.M.-I, Alappuzha and shall
not travel beyond the limits of the State of Kerala
without the prior permission of the committal
Magistrate or the Sessions Court to which he is
committed for trial.
4. The petitioner shall make himself available
for interrogation as and when required by the
police till the filing of the supplementary final
report.
5. The petitioner shall not influence or
intimidate the prosecution witnesses nor shall he
attempt to tamper with the evidence for the
prosecution.
6. The petitioner shall not commit any offence
while on bail.
If the petitioner commits breach of any of the above conditions,
the bail granted to him shall be liable to be cancelled.
This application is allowed as above.
V.RAMKUMAR, JUDGE.
ani
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