Shajimon @ Shaji vs State Of Kerala
2021 Latest Caselaw 12748 Ker

B.A.No.4056 of 2021                1


                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                      THE HONOURABLE MRS. JUSTICE SHIRCY V.
         MONDAY, THE 7TH DAY OF JUNE 2021 / 17TH JYAISHTA, 1943
                           BAIL APPL. NO. 4056 OF 2021
PETITIONER

             SHAJIMON @ SHAJI
             AGED 45 YEARS
             SHIBILA MANZIL, VALLIKUNNAM THEKKE MURI, VALLIKUNNAM
             VILLAGE, ALAPPUZHA
             ALAPPUZHA, PIN - 690501
             BY ADV P.THOMAS GEEVERGHESE


RESPONDENT

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
             ERNAKULAM, PIN - 682031
             BY ADV PUBLIC PROSECUTOR


OTHER PRESENT:

             SMT. SREEJA V - PP


THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.06.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A.No.4056 of 2021             2




                                ORDER

The petitioner is the sole accused in Crime No.857 of 2020 of

Vallikkunnam Police Station registered for the offences punishable under

Sec.376 (2) (i) of the Indian Penal Code and Sections 4 r/w 3(a), 6 r/w

5(1) and 12 r/w 11 (iv) of the POCSO Act.

2. The petitioner was arrested and remanded to judicial custody on

7.9.2020 . But the investigation of the case was not complete even after

the expiry of 90 days and hence, the petitioner/accused filed bail

application before the court below as Crl.M.P.No.499 of 2020 for default bail

as per the mandate under Sec. 167(2) of Cr.P.C.

3. The grievance projected by the learned counsel for the petitioner is

that the application filed by the accused for statutory bail before the court

was kept pending by the court below to enable the investigating agency to

submit the final report. Later the application was dismissed by the learned

Additional Sessions Judge whereby his right to default bail was denied .

4. Then this petitioner has submitted B.A.No.4056 of 2021 before

this Court for bail. While considering the bail application the Registry was

directed to call for a report from the Special Court for Trial of Offences

relating to Atrocities against Women and Children, Alappuzha for furnishing

the details regarding the date of remand, the date of filing of the

Crl.M.P.No.499 of 2021 for bail and the date of the final report submitted

by investigating officer before the court below.

5. In compliance of the said order, the court below has reported that

the accused was remanded on 7.9.2020, the bail application as

Crl.M.P.No.499 of 2021 was filed on 2.3.2020 and the final report was

submitted on 5.3.2021. Now the case is pending as S.C.No.195 of 2021

before the Additional Sessions Court-I, Alappuzha.

6. Heard the learned Counsel for the petitioner as well the learned

Public Prosecutor.

7. In M.Ravindran v. Intelligence Officer, Directorate of Revenue

Intelligence [2021 (2) SCC 485] the Apex Court has held that the right

to default bail is an indefeasible right and if the right has been exercised by

the accused then the court shall grant bail to the accused. The Apex Court

after emphasizing the paramount consideration of the legislature and the

enactment of Section 167(2) of Code of Criminal Procedure observed that

it ensures that the investigating agency must collect the required evidence

within the prescribed period without any undue delay from the date of

giving information of the offence and further that, therefore the courts

cannot adopt a rigid or formalistic approach whilst considering any issue

that touches upon the rights contained in Article 21 of the Constitution of

India. The Apex Court has also emphasised that the paramount

consideration of the legislature while enacting Section 167 (2) and the

proviso thereto was that the investigation must be complected

expeditiously and that the accused should not be detained for an

unreasonably long period as was the situation prevailing under the 1898

Code. It is further observed that this would be in consonance with the

obligation cast upon the State under Article 21 to follow a fair, just and

reasonable procedure prior to depriving any person of his personal liberty.

8. In short, after referring to various judgments the Apex Court

concluded that once the accused files an application for bail under the

proviso to S.167(2) he is deemed to have "availed of" or enforced his right

to be released on default bail, accruing after expiry of the stipulated time

-limit for investigation.

9. Therefore, it is clear that when an application is submitted for

default bail it has to be deemed that the accused has availed of his right to

be released on bail and the accused is ready to furnish bail bond and such

right is an indefeasible right of the accused.

10. In the case on hand the accused had already completed 90 days

in judicial custody as he was arrested and remanded on 7.9.2020. He has

moved the application for default bail on 2.3.2021. As reported by the

learned Judge the final report was submitted thereafter ie; only on

5.3.2021. But the learned trial Judge has not considered the fact that

charge sheet has not been filed within the stipulated time and the

application submitted by the accused for default bail was pending before

filing of the final report by the investigating agency.

11. It is apparent that the court below has failed to appreciate the

argument addressed by the learned counsel for the accused that he has

availed of the right for his release on default bail and rejected his

application on 9.3.2020 ignoring the fact that the final report has been filed

only on 5.3.2021 , and also observing that enlargement of the accused on

bail would adversely affect the investigation. It is so clear that the court

below has not bothered to verify the actual date of filing of the final report

and has wrongly considered the seriousness of the offences alleged as well

the merits of the case which is not a matter while considering an

application for default bail.

Hence, I find that the petitioner/accused has a right for default bail

and he is entitled to be released on bail subject to the following conditions.

(i) The petitioner shall be released on bail forthwith on his executing a bond for a sum of Rs.1,00,000 /- (Rupees one lakh only) with two solvent sureties for the like sum each to the satisfaction of the court having jurisdiction.

(ii) The petitioner shall co-operate with the trial of the case.

(iii) The petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(iv) The petitioner shall not commit any offence while on bail.

( v) The petitioner shall not leave Kerala without the prior permission of the trial court .

vi) The petitioner shall surrender his passport if any within two weeks of

his release on bail; if he is not holding a passport shall file an affidavit

within two weeks of his release before the trial court.

In case of breach of any of the above conditions, the bail

granted to him is liable to be cancelled as per the law.

Sd/-

                                                          SHIRCY V

smm                                                        JUDGE