Kerala High Court

Atmaj.S.Ashok vs State Of Kerala on 7 October, 2022

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                    THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
         FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                         BAIL APPL. NO. 5953 OF 2022
 AGAINST THE ORDER/JUDGMENTCMP 1268/2022 OF JUDICIAL MAGISTRATE OF FIRST
                              CLASS ,THALASSERY
             CRIME NO.183/2022 OF NEW MAHI POLICESTATION, KANNUR
PETITIONER/ACCUSED NO.1:

             LIJESH K.,AGED 38 YEARS,S/O JANARDHANAN K,
             SREESANKARALAYAM,KOMAL VIYAL,
             TEMPLE GATE P O.,THALASERRY - 670102

             BY ADVS.S.RAJEEV,V.VINAY
             M.S.ANEER,SARATH K.P.
             PRERITH PHILIP JOSEPH



RESPONDENT/State:

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM -682 031
             (CRIME NO 183/2022
             OF NEW MAHI POLICE STATION,
             KANNUR DISTRICT)


             BY SRI.GRACIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF
             PROSECUTION(AG-11)



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.10.2022,
ALONG WITH Bail Appl..6792/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 BA No.5953 & 6792/2022               2




               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                 THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
       FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                         BAIL APPL. NO. 6792 OF 2022
 AGAINST THE ORDER/JUDGMENT IN Bail Appl. 4178/2022 OF HIGH COURT
                                  OF KERALA
             CRIME NO.183/2022 OF NEW MAHE POLICESTATION
PETITIONER/ACCUSED NO.13:

             ATMAJ.S.ASHOK,AGED 25,S/O.ASOKAN,
             SAMANG HOUSE, KODIYERI AMSOM, MADAPEEDIKA,
             KANNUR DISTRICT, PIN - 670671

             BY ADVS.R.ANIL,
             B.RAMAN PILLAI (SR.)
             M.SUNILKUMAR,SUJESH MENON V.B.
             THOMAS ABRAHAM (NILACKAPPILLIL)
             THOMAS SABU VADAKEKUT,MAHESH BHANU S.
             S.LAKSHMI SANKAR,RESSIL LONAN

RESPONDENT/COMPLAINANT:

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

OTHER PRESENT:

             BY ADGP - SRI. GRACIOUS KURIAKOSE

      THIS   BAIL   APPLICATION    HAVING     COME   UP   FOR   ADMISSION   ON
07.10.2022, ALONG WITH Bail Appl..5953/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 BA No.5953 & 6792/2022           3


                     VIJU ABRAHAM, J.
       -- -- -- -- -- -- -- -- -- -- -- -- --
               B.A. Nos.5953 & 6792 of 2022
       -- -- -- -- -- -- -- -- -- -- -- -- --
            Dated this the 7th day of October, 2022

                              ORDER

These are applications for regular bail.

2. B.A.No.5953/2022 is filed by the 1 st accused, whereas B.A.

No.6792/2022 is filed by accused No.13 in Crime No.183 of 2022

of New Mahe Police Station, Kannur District registered alleging

commission of offences punishable under Sections 143, 147, 148,

447, 204, 120B and 302 read with Section 149 of the Indian Penal

Code (in short, "IPC").

3. The prosecution allegation is that, the accused who are

workers of BJP/RSS were in inimical terms with one Haridasan, a

CPI(M) loyalist in connection with an incident which occurred on

08.02.2022 near to Kooloth Bhagavathi Temple in which accused

Nos.10 and 11 were attacked by the said Haridasan and his friend

named Angi Suran. Due to said animosity and political rivalry, the

accused entered into a criminal conspiracy to commit murder of

said Haridasan and on 21.02.2022 the accused formed themselves

into an unlawful assembly and in pursuance of the conspiracy

hatched, at 1.20 a.m. trespassed into the property of Haridasan

and concealed themselves behind the bushes near to the well of

the house of the said Haridasan. Immediately when the said

Haridasan came to the courtyard of his house, the accused beat

him using steel pipes and hacked him to death using sword and

thus committed the above said offences.

4. The specific case of the petitioner in B.A. No.5953/2022,

who is the first accused in the aforesaid crime, is that he was

arrested on 22.02.2022 and he is in custody since then. It is

submitted by the learned counsel for the petitioner that

petitioner is eligible of statutory bail, after 90 days, if no final

report is filed, going by Section 167 Cr.PC. The specific case of

the petitioner is that only an incomplete final report is filed in the

case and due to certain defects the same has been returned back

and therefore, the petitioner is entitled for statutory bail as on the

said date. The petitioner moved the Judicial Magistrate of First

Class, Thalassery under Section 167(2) of the Criminal Procedure

Code seeking default bail and the said application was rejected by

Annexure 1 order. Though he also moved an application before

the Court of Sessions, Thalassery, the same was also rejected by

Annexure 2 order. The specific contention of the petitioner is that

it is the bounden duty of the Court to inform the accused about

the benefit of statutory bail and also contended that on

23.05.2022 the petitioner accrued a statutory right for grant of

bail. To substantiate the said contention, the petitioner relies on

the Judgment in Ravindran v. Intelligence Officer,

Directorate of Revenue Intelligence [2020 (6) KLT 127(SC)]

and also the Judgment of the Bombay High Court in

Sharadchandra Vinayak Dongre and Others v. State of

Maharashtra [MANU/MH/0193/1991] to contend for the

position that the petitioner is entitled for statutory bail as

envisaged in Section 167(2) of Cr. P.C.

5. The learned Additional Director General of Prosecution

opposed the application for bail mainly contending that the

petitioner is the 1st accused in the above said crime and has

actively involved in the commission of the offence, inasmuch as

serious overtacts of hacking the deceased with a sword along with

accused Nos.2, 3, 4, 5 and 6 is alleged against the petitioner. It is

further submitted that the petitioner is a person having serious

criminal antecedents and he is involved in 7 other criminal cases

including even offences punishable under Section 302 IPC. As

regards the contention of the petitioner that he is entitled for

statutory bail, the learned Additional Director General of

Prosecution submitted that the charge sheet was originally filed

on 20.05.2022 within the statutory period and the charge sheet

was returned on 21.05.2022 for curing certain defects and the

same was re-submitted after curing the defects on the same day

itself. Later it was returned again due to certain defects on

25.05.2022 and resubmitted after curing the defects on

30.05.2022. Therefore, on the basis of the same, the learned

Additional Director General of Prosecution submitted that

inasmuch as the charge sheet was filed within the statutory

period, the subsequent return of the charge sheet for curing the

defect and re-presentation of the same after curing the defect will

not give any right to the petitioner for grant of default bail. The

learned Additional Director General of Prosecution seriously

opposed the application for bail mainly contending that as the

charge sheet was filed within time, the return of the same for

curing certain defects will not make the petitioner entitled for

statutory bail. He relies on the Judgment in Saharath V. P. v.

State of Kerala (2021 KHC 5061) and also the Judgment in

Shino Paul and Others v. State of Kerala and Others [2010

(1) KHC 469] to substantiate his contentions.

6. The case of the petitioner in B. A. No.6792/2022, who is

the 13th accused in the above said crime, is that he has been

falsely implicated in the above said crime and he has no other

criminal antecedents. It is also submitted by the learned counsel

for the petitioner that the petitioner has passed plus two and ITI

and has been working with private firms and his marriage was on

21.05.2021 and thereafter he was leading a peaceful life with his

parents, newly wedded wife and his only sister. It is the case of

the petitioner that 11 days after the registration of the FIR in the

above crime, he has been falsely implicated as an accused

alleging criminal conspiracy. He appeared before the

investigating officer as directed and his formal arrest was

recorded on 04.03.2022 and thereafter he is in custody. It is the

case of the petitioner that till date, the investigating agency could

not collect any incriminating evidence against him. It is his

further case that while he was in custody, the investigating

agency has planted recovery of 3 swords stated to be handed over

by the other accused allegedly at the instance of the petitioner, on

13.03.2022. A complaint was also preferred before the learned

Magistrate in this regard. It is also submitted that the final report

is already laid and further detention of the petitioner is not

required for the purpose of investigation. Even though the

petitioner moved an application before the Sessions Court, the

same was rejected by Annexure A order. Later the petitioner

along with 7 other accused, filed B.A. No.4178/2022, and the

same was also rejected by this Court as per order dated

14.07.2022. It is further submitted by the petitioner that he is an

active worker of BJP and that is the main reason for falsely

implicating him in the alleged crime. It is also submitted that his

father was a prominent leader of CPI(M) in Kodiyeri, who was

even elected as Councilor of Kodiyeri West Ward of Thalassery

Municipality as CPI(M) candidate. Later he severed all his

connection with CPI(M) and that is also a reason for falsely

implicating the petitioner in the alleged crime. Even going by the

prosecution case, the petitioner is not among the alleged

assailants of the deceased Haridasan.

7. The learned Additional Director General of Prosecution

seriously opposed the application for bail. It is submitted that the

petitioner is now arrayed as accused No.8. It is also submitted

that the petitioner also has an active role in the alleged crime as

well as in the conspiracy. Three swords were recovered by the

police based on the confession statement of the petitioner herein.

It is further submitted that there were earlier attempts to commit

murder of the deceased on 11.02.2022 and accused Nos. 7, 8, 10,

11, 13, 14, 15 and 16 formed in an unlawful assembly to commit

murder of the deceased, but due to some reasons it could not take

place. Thereafter, the petitioner herein along with accused Nos.1,

4, 6 and 7 conspired on 14.02.2022 to commit the alleged offence,

but the same could not be materialised on the said date also. The

investigation reveals that the petitioner is the prime conspirator

to the commission of the alleged offence. On verification of the

tower location, on 09.02.2022, 11.02.2022 and on 14.02.2022, the

petitioner was found together with the other accused and this

would reveal that all these persons including the petitioner was

present at the same place, at the same time. The call records

were also collected and on observing the sound files extracted by

the RFSL, Kannur, the clear involvement of the petitioner in the

conspiracy and commission of the offence is revealed. Therefore,

the learned Additional Director General of Prosecution opposed

the application for bail mainly for the reason that the

investigation clearly reveals the involvement of the petitioner in

the conspiracy as well as attempt to commit the alleged crime

along with other accused.

8. As regards the petitioner in B.A.No.5953/2022, he is the

1st accused in the alleged crime, one among the assailants who

brutally murdered the deceased. The postmortem certificate

dated 21.02.2022 clearly reveals that inasmuch as 23 antemortem

injuries were noted and the attack resulted in the amputation of

the left leg of the deceased and as per the opinion as to the cause

of death, it is stated that it is due to multiple incised sharp force

injuries inflicted; resulting in amputation of left leg, transecting

major blood vessels and injuries resulting in cut/fractures, blood

loss and shock. He is also involved in 7 other criminal cases of

serious nature, including one punishable under Section 302 IPC.

Main contention of the petitioner is that he is entitled for

statutory bail inasmuch as an incomplete report was filed before

the court below. It is not in dispute that the charge sheet was

originally filed on 20.05.2022, ie., within the statutory period.

The only contention of the petitioner is that the charge sheet was

returned back for curing defect and ultimately it was resubmitted

only on 30.05.2022. The petitioner submitted that he is entitled

for statutory bail as on 23.05.2022, since as on that date, no final

report was filed before the court, and therefore, he is entitled for

statutory bail. It is seen from Annexure A1 order passed by the

learned Magistrate that the charge sheet was filed on 20.05.2022,

within the statutory period and the same was returned on

21.05.2022 for curing defects. Thereafter, the charge sheet was

re-submitted after curing the defect on 21.05.2022 and it is only

on 25.05.2022, it was again returned for curing defects and that it

was resubmitted on 30.05.2022 after curing the defects noted. In

Ravindran's case (Supra), it is specifically held that 'the right to

be released on default bail continues to remain enforceable if the

accused has applied for such bail, notwithstanding the pendency

of the bail application; or subsequent filing of the chargesheet or

a report seeking extension of time by the prosecution before the

Court; or filing of the chargesheet during the interregnum when

challenge to the rejection of the bail application is pending before

a higher Court'. On the strength of the said Judgment the learned

counsel for the petitioner submitted that Section 167(2) Cr.PC

provides for a clear mandate that it gives an indefeasible right to

the accused for grant of bail in case charge sheet is not filed

within the statutory period. In Sharadchandra Vinayak

Dongre case (Supra), the question that was considered is as to

whether the action of the trial court in taking cognizance of the

offence on the basis of an incomplete police report, was in

accordance with law and in the said Judgment, it was held that

the Magistrate court cannot take cognizance on the strength of an

incomplete police report. The Additional Director General of

prosecution relies on the Judgment in Shino Paul's case (Supra)

which specifically considered a similar question as in the present

case and paragraph 1 of the said order dealing with the facts of

the case is extracted below:

" 1. The questions of law involved in this Bail Application are (1) whether the accused would be entitled to 'default bail' under the proviso (a) to sub-section (2) of S. 167 of the Code of Criminal Procedure in a case where the charge sheet filed within time was returned by the learned Magistrate to the investigating officer with certain directions regarding investigation, and when the charge sheet was not re-submitted within ninety days from the date of arrest of the accused (2) When the charge - sheet was filed within time and cognizance was not taken, whether the Magistrate has jurisdiction to remand an accused to judicial custody. If so, would S.309 Code of Criminal Procedure apply to the situation?"

Later in paragraph 15 of the said judgment it is held as follows:

"15. For the purpose of disposal of this Bail Application, it is not necessary to decide the correctness or otherwise of the order dated 08/12/2009 passed by the learned Magistrate. That question is pending consideration in a Writ Petition. It is well settled that a further investigation under S.173(8) CrPC can be made at various stages. It can be made even after cognizance of the offence is taken. However, after taking cognizance of the offence, the Magistrate cannot, of his own, make an order for further investigation. Such an order can be passed on the application of the investigating officer. Filing the charge sheet, however, does not preclude the investigating officer from making further investigation in terms of S. 173 (8) CrPC (See Kishan Lal v. Dharmendra Bafna and Another, 2009 KHC 835: 2009 (7) SCC 685 2009 (2) KLD 330 2009 (9) SCALE 768 AIR 2009 SC 2932, Randhir Singh Rana v. State (Delhi Administration), 1997 KHC 247: 1997 (1) SCC 361 AIR 1997 SC 639: 1997 (1) KLT SN 73, Reeta Nag v. State of West Bengal and Others, 2009 KHC 4942 2009 (9) SCC 129, Dinesh Dalmia v. CBI, 2007 KHC 5701 2007 (8) SCC 770: 2007 (2) KLD 344 (SC): 2007 (4) KLT SN 27 JT 2007 (11) SC 164: AIR 2008 SC 78: 2008 CriLJ 337, State of Bihar and Another v. J. A. C. Saldanna

and Others, 1980 KHC 591 AIR 1980 SC 326: 1980 (1) SCC 554 1980 SCC (Cri) 272 1980 CriLJ 98 1980 MLJ (Cri) 382 1980 (17) ACC 279: 1980 (28) BLJR 18).

In the present case, the charge-sheet was filed well within time. Even though the learned Magistrate returned the charge - sheet, it cannot be held that the proviso to S. 167(2) is attracted. I am not inclined to accept the contention of the petitioners that the case has to be dealt with as if no charge - sheet is filed" (underline supplied)

A similar issue was considered by this Court in Saharath V. P.'s

case (Supra). In paragraph 5 of the said Judgment it is held as

follows:

"5. The applicant had raised all these contentions earlier and this court had vide Order dated 21-10-2020 found that there were no reasons to hold that the final report was not filed within time. The copy of the Drug Disposal Committee was not seen handed over to the accused. Hence, the prosecution was directed by the jurisdictional court to cure that defect. This Court had relied upon the decision of the Supreme Court in Central Bureau of Investigation v. R. S. Pai and Another. (2002 (2) KLT 149 (SC) 2002 (5) SCC 82], and the decision of this Court in Shino Paul and Others v. State of Kerala [2010 (1) KLT 339], wherein it was held that if a mistake is committed in not producing the relevant documents at the time of submitting the report or the charge sheet, it is always open to the investigating officer to produce the same with the permission of the Court. In the case on hand, the charge - sheet was returned as defective. It implies permission to cure the defects. The defects were cured and the charge- sheet was re- presented. It cannot be said that the proviso to S. 167(2) Cr. P C. would get attracted, and the accused to get default bail if the charge sheet is re- presented after curing the defects, beyond the period in the said proviso, when the charge sheet was originally filed within time. Regarding the application of the embargo under S.37 of the NDPS Act, this Court had referred to the judgment of the Hon'ble Supreme Court reported in Union of India (UOI) v. Shri Shiv Shanker Kesari [KHC 5675: 2007 (7) SCC 798] and the application for bail was dismissed." (underline supplied)

In view of the declaration of law by this Court in Shino Paul's

case (Supra) and Saharath's case(Supra) as above, I find no

merit in the contention raised by the petitioner that he is entitled

for statutory bail.

9. Considering the facts that the petitioner in B.A.No.5953

of 2022 has an active involvement in the actual commission of the

crime and further that he is involved in 7 other criminal cases,

including one punishable under Section 302 IPC, I feel that the

petitioner is not entitled for bail at this stage.

10.As regards the petitioner in B.A.6792/2022, prima facie I

feel that the involvement of the petitioner in the alleged

conspiracy is clear from the material collected by the prosecution

as part of the investigation. It is true that the veracity and

admissibility of the same are matters to be considered at the time

of trial. But considering the active role of the petitioner in the

commission of the present offence, I am not inclined to grant bail