Kerala High Court
Sayyad S.A vs State Of Kerala on 23 July, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
B.A. No.7686/25 1
2025:KER:54411
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
BAIL APPL. NO. 7686 OF 2025
CRIME NO.389/2025 OF KUMBLA POLICE STATION, KASARGOD
AGAINST THE ORDER DATED 30.05.2025 IN Bail Appl. NO.6912 OF
2025 OF HIGH COURT OF KERALA
PETITIONER/ACCUSED NO.2:
SAYYAD S.A
AGED 28 YEARS, S/O ABOOBACKER,
SEEGAMOOLA HOUSE,
OLAKKUNNU CHALLANKAYAM,
DHARMATHADUKKA, BADOOR GRAMAM,
KASARAGOD DISTRICT, PIN - 671324
BY ADVS.
SRI.K.MOHAMMED RAFEEQ
SRI.BIBIN MATHEW
SMT.VISHNUMAYA ANANDAN
SHRI.SONYMON ANTONY
SMT.SHIFANA M.
SRI.ABHIJITH P.A.
SRI.P.M.MATHEW
SRI.AMARNATH R LAL
SHRI.SANALDEV E.P.
RESPONDENTS/STATE AND COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM DISTRICT, PIN - 682031
2 STATION HOUSE OFFICER
KUMBALA POLICE STATION,
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KASARAGOD DISTRICT, PIN - 671321
SRI. NOUSHAD K. A., PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
08.07.2025, THE COURT ON 23.07.2025 DELIVERED THE FOLLOWING:
B.A. No.7686/25 3
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"C.R"
BECHU KURIAN THOMAS, J.
--------------------------------
B.A. No.7686 of 2025
---------------------------------
Dated this the 23rd day of July, 2025
ORDER
Petitioner seeks regular bail under section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 2023.
2. Petitioner is the 2nd accused in Crime No.389 of 2025 of Kumbala
Police Station, Kasaragod registered alleging offences punishable under
sections 126(2), 115(2), 137(2), 310(2) and 351 of the Bharatiya Nyaya
Sanhita, 2023 (for short 'BNS').
3. The prosecution alleges that, on 06.05.2025 at around 2.30
p.m., accused wrongfully restrained the defacto complainant and
abducted him and compelled him to transfer 20,743 US dollars, which is
equivalent to Rs.18,46,727/- and thereby committed the offence of
dacoity. Petitioner was arrested on 08.05.2025 and he has been in
custody since then.
4. Sri. K. Mohammed Rafeeq, the learned counsel for the petitioner
contended that the prosecution allegations are false and that no such
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incident as alleged had occurred. It was further submitted that since the
petitioner was remanded to custody on 08.05.2025, sixty days had
expired by 06.07.2025 and till date final report has not been filed and
hence the petitioner is entitled to be released on statutory bail. It was
further submitted that considering the nature of allegations, the period
of custody already undergone by the petitioner should be treated as
sufficient, especially since the investigation is almost completed and
hence the petitioner ought to be released on bail.
5. Sri. K.A. Noushad, the learned Public Prosecutor on the other
hand submitted that the petitioner and other accused are alleged to have
committed a very serious offence and they have committed dacoity
which, as per section 310(2) of BNS is punishable with imprisonment for
life or with rigorous imprisonment for a term which may extend upto ten
years and hence, the period available for completing the investigation
under section 187(3)(1) is ninety days. According to the learned Public
Prosecutor, since the investigation has not yet been completed and the
period for investigation is ninety days, petitioner is not entitled for
statutory bail.
6. I have considered the rival contentions.
7. Amongst the offences alleged against the petitioner, the offence
of dacoity carries with it a punishment of imprisonment for life or with
rigorous imprisonment for a term which may extend to ten years and
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shall also be liable to fine. For the purpose of easier comprehension,
section 310(2) of BNS is extracted below:
"S.310(2)."Whoever commits dacoity shall be punished
with imprisonment for life, or with rigorous imprisonment
for a term which may extend to ten years, and shall also
be liable to fine".
8. Thus, the maximum punishment that can be imposed for the
offence of dacoity is imprisonment for life as well as rigorous
imprisonment for a term which may extend to ten years. No minimum
punishment is prescribed.
9. Section 187(3) of BNSS permits detention of a person beyond
the period of fifteen days only if adequate grounds exist for doing so.
However, the provision specifies that no Magistrate shall authorise the
detention of an accused in custody for a total period exceeding ninety
days where investigation relates to an offence punishable with death,
imprisonment for life, or imprisonment for a term of ten years or more
and sixty days, where the investigation relates to any other offence.
Thus, it is evident that if the investigation relates to an offence which
provides for a punishment of imprisonment for a term of ten years or
more or imprisonment for life or with death, then the Magistrate is
entitled to authorise detention upto ninety days.
10. The question raised for consideration is whether the offence of
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dacoity, which is punishable with imprisonment for life or with rigorous
imprisonment for a term which may extend to ten years, would fall
within section 187(3)(i) of BNSS, enabling detention for a period upto
ninety days.
11. Certain provisions of BNS provide imprisonment for life or
imprisonment which may extend upto ten years as punishment. Such
offences will have to be categorized as serious or grievous crimes as the
maximum imprisonment provided is for life. The offences under section
109, sections 310(2), 316(5) and 338(5) of BNS are some of such
offences where similar types of punishments are provided. Though no
minimum punishment is provided, the maximum punishment provided is
imprisonment for life. Hence those offences are to be categorized as
grave offences.
12. In this context, it is relevant to refer to the decision in Rakesh
Kumar Paul v. State of Assam [(2017) 15 SCC 67], wherein, a three
Judge Bench of the Supreme Court considered the issue and by a 2:1
majority held that offences punishable with a minimum sentence of
imprisonment of more than ten years have been equated and kept in one
compartment equating them with offences punishable with death or
imprisonment for life. The following observations in paragraph 27 of the
judgment being relevant in the context of the issue under consideration,
they are extracted as below:
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"27. It is true that an offence punishable with a sentence of death
or imprisonment for life or imprisonment for a term that may
extend to 10 years is a serious offence entailing intensive and
perhaps extensive investigation. It would therefore appear that
given the seriousness of the offence, the extended period of 90
days should be available to the investigating officer in such cases.
In other words, the period of investigation should be relatable to
the gravity of the offence - understandably so. This could be
contrasted with an offence where the maximum punishment under
IPC or any other penal statute is (say) 7 years, the offence being
not serious or grave enough to warrant an extended period of 90
days of investigation. This is certainly a possible view and indeed
CrPC makes a distinction in the period of investigation for the
purposes of 'default bail' depending on the gravity of the offence.
Nevertheless, to avoid any uncertainty or ambiguity in
interpretation, the law was enacted with two compartments.
Offences punishable with imprisonment of not less than ten years
have been kept in one compartment equating them with offences
punishable with death or imprisonment for life. This category of
offences undoubtedly calls for deeper investigation since the
minimum punishment is pretty stiff. All other offences have been
placed in a separate compartment, since they provide for a lesser
minimum sentence, even though the maximum punishment could
be more than ten years imprisonment. While such offences might
also require deeper investigation (since the maximum is quite high)
they have been kept in a different compartment because of the
lower minimum imposable by the sentencing court, and thereby
reducing the period of incarceration during investigations which
must be concluded expeditiously. The cut-off, whether one likes it
or not, is based on the wisdom of the legislature and must be
respected."
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13. Though the above observations may give rise to a doubt that in
offences where a minimum imprisonment of more than ten years is not
provided, despite an imprisonment for life being imposable, the benefit
of default bail will arise on completion of sixty days, the said doubt is set
at rest by the observations in the concluding paragraph 84.2 of the
concurring judgment of His Lordship Deepak Gupta (J) in Rakesh
Kumar Paul's case (supra). Those observations in paragraph 84 are as
under:
" 84. In view of the above discussion, my findings are as
follows:
84.1. (omitted)
84.2. S.167(2)(a)(i) of the Code is applicable only in cases
where the accused is charged with (a) offences punishable with
death and any lower sentence; (b) offences punishable with life
imprisonment and any lower sentence; and (c) offences
punishable with minimum sentence of 10 years;
84.3. In all cases where the minimum sentence is less than 10
years but the maximum sentence is not death or life
imprisonment then Section 167(2)(a)(ii) will apply and the
accused will be entitled to grant of 'default bail' after 60 days in
case charge - sheet is not filed.
84.4. The right to get this bail is an indefeasible right and this
right must be exercised by the accused by offering to furnish
bail.
85. On issues 84.2 to 84.4, I agree and concur with my learned
Brother Lokur, J. and with due respect I am unable to agree with
learned Brother Pant, J.
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86. I agree and concur with the conclusions drawn and
directions given by learned Brother Lokur, J. in Paras 49 to 51 of
his judgment."
14. Considering the above binding precedent, the Gujarat High Court has
in Manish v. State of Gujarat [(2018) Cri.L.J 2959] held that the period for
filing charge sheet for an offence under section 467 IPC is ninety days. The
Supreme Court has also in Suresh Kumar Bhikamchand Jain v. State of
Maharashtra and Another [(2013) 3 SCC 77] held that the period for filing
charge sheet for an offence under section 409 IPC is ninety days. The Punjab &
Haryana High Court has, in Manjinder Singh and Another v. State of
Punjab [2019 SCC Online P&H 6461] and the Delhi High Court in Lalita Saini
v. State and Another [2019 SCC Online Del 9651] held that the period for
filing charge sheet for an offence under section 409 IPC is ninety days.
15. Section 467 IPC corresponds to section 338(5) of BNS while section
409 IPC corresponds to section 316(5) of BNS. The punishment provided for
those offences is the same as that provided for section 310(2) of BNS, i.e.
imprisonment for life or imprisonment which may extend to ten years .
Thus, when the offence of dacoity, which is punishable with imprisonment
for life or with rigorous imprisonment for a term which may extend to
ten years, is under investigation, the right to statutory bail arises as per
section 187(3)(i) of BNSS on completion of ninety days from the date of
custody.
16. In view of the above discussion, petitioner is not entitled to
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statutory bail. Considering the gravity of the allegations, petitioner is not
entitled to be released on bail as well.
Accordingly, this bail application is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
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APPENDIX OF BAIL APPL. 7686/2025
PETITIONER'S/S' ANNEXURES
Annexure-1 TRUE COPY OF FIRST INFORMATION REPORT IN
CRIME NO. 389/2025 OF KUMBALA POLICE STATION.
Annexure-2 TRUE COPY OF THE ORDER DATED 21.05.2025 IN
CMP. NO. 733/2025 ON THE FILE OF HONOURABLE
JUDICIAL FIRST CLASS MAGISTRATE COURT-II
(ADDITIONAL MUNSIFF), KASARGOD.
Annexure-3 TRUE COPY OF BAIL ORDER DATED 30.05.2025 IN
BA NO. 6912/2025 ON THE FILE OF HONOURABLE
HIGH COURT OF KERALA AT ERNAKULAM.
