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2024 DIGILAW 1490 (KER)

RATHNAKUMAR. K v. STATE OF KERALA

2024-11-15

C.S.DIAS

body2024
ORDER The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2024, by the first accused in Crime No. 21/2024 of Ottappalam Forest Range Office, Palakkad, which is registered against two accused persons for allegedly committing the offences punishable under Sections 2(2), 2(11), 2(14), 2(16), 2(31), 9, 39, 49, 50, and 51 of the Wildlife (Protection Act), 1972. The petitioner was remanded to judicial custody on 07.09.2024. 2. The crux of the prosecution case is that: on 07.09.2024, two accused persons were found in conscious possession of six pieces of ivory. The accused persons were arrested on the spot. Thus, the accused have committed the above offences. 3. Heard; Sri. Manzoorali, the learned counsel appearing for the petitioner and Smt. Pushpalatha.M.K., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate the petitioner's involvement in the crime. The Investigating Officer has deliberately implicated the petitioner as an accused without any cogent material. In any given case, the petitioner has been in judicial custody for the last more than 70 days, the investigation in the case is not complete, the offences alleged against the petitioner are punishable up to a period seven years, but the charge sheet has not been filed. Hence, the petitioner is entitled to be released on statutory bail. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner has committed a very serious crime. The investigation in the case is in progress. She also stated that if the petitioner is let off on bail, there is every likelihood of him tampering with the evidence and intimidating the witnesses. Therefore, the application may be dismissed. Nonetheless, she did not dispute the fact that the investigation in the case is not complete and the charge-sheet has not been filed. 6. The prosecution allegation is that the petitioner and with the second accused were found in conscious possession of six pieces of ivory. They were arrested on the spot and remanded to judicial custody. Nonetheless, she did not dispute the fact that the investigation in the case is not complete and the charge-sheet has not been filed. 6. The prosecution allegation is that the petitioner and with the second accused were found in conscious possession of six pieces of ivory. They were arrested on the spot and remanded to judicial custody. Indisputably, the petitioner has been in judicial custody for the last more than 70 days, the offences alleged against the petitioner are punishable up to seven years, the investigation in the cases is not complete, and the charge sheet has not been filed. 7. In the aforementioned context, it is apposite to refer to Section 187(1) to (4) of the BNSS, which reads as follows: 187. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. (3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter. (4) No Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the audio-video electronic means.” 8. While interpreting an analogous provision under Section 167 of the Code of Criminal Procedure , 1973, a three-Judge Bench of the Honourable Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra [ (2001) 5 SCC 453 ], following the decision in Sanjay Dutt v. State through C.B.I., Bombay [ (1994) 5 SCC 410 ], held as follows: "13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” 9. In the instant case, as the petitioner has been in judicial custody for the last more than 70 days, the investigation in the case is not complete, the offences alleged against the petitioner are punishable for a period up to seven years, and the final report has not been laid, I am satisfied that the petitioner is entitled to be released on statutory bail, since it is his indefeasible right under Section 187(2) of the BNSS. Hence, I allow the bail application. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure 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 in any manner, whatsoever; (iii)The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the Jurisdictional Court at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the Jurisdictional Court on the date of execution of the bond; (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the Jurisdictional Court. (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and Another [ 2020 (1) KHC 663 ].