Crl. A. No. 1064 of 2015. Case: Rajeesh Vs State of Kerala and Ors.. High Court of Kerala (India)
| Case Number | Crl. A. No. 1064 of 2015 |
| Counsel | For Appellant: K.S. Madhusoodanan, M.M. Vinod Kumar, Thushar Nirmal Sarathy, K.M. Ramya, P.K. Rakesh Kumar and K.S. Mizver, Advs. and For Respondents: K.S. Abdul Rasheed, Addl. Director General |
| Judges | K. T. Sankaran and Raja Vijayaraghavan V., JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 167, 167(2), 439; Indian Penal Code 1860, (IPC) - Sections 120B, 124(A); National Investigation Agency Act, 2008 - Section 21(4); Unlawful Activities Prevention Act, 1967 (Central) - Sections 10, 13, 19, 20, 20(4), 43(D), 43D(2) |
| Judgement Date | November 27, 2015 |
| Court | High Court of Kerala (India) |
Judgment:
Raja Vijayaraghavan V., J.
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The legality of the order dated 7.10.2015 in Crl.M.P. No. 1784 of 2015 of the Sessions Judge, Kalpetta, is challenged in this appeal preferred u/s. 21(4) of the National Investigation Agency Act, 2008 by the appellant, who is the 6th accused in crime number 142/2014 of the Vellamunda police station.
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The above petition was preferred by the appellant under section 439, 167(2) of the Code of Criminal Procedure (hereinafter referred to as "the Code") read with section 43(D) of the Unlawful Activities (Prevention) Act (hereinafter referred to as the UA(P) Act), seeking default bail.
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The question raised by Sri K.S. Madhusoodanan, the learned counsel appearing for the appellant, centers around the interpretation of S. 43D(2) of the UA(P) Act which modifies the operation of S. 167(2) of the Code, when offences under the UA (P) Act are involved.
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Skeletal facts will have to be noted first:--
"(a). On 24.4.2014, at about 20.30 hrs, one Roopesh along with 4 other accused, who are allegedly members of a terrorist organization by name CPI (Maoist), in prosecution of their common object, formed themselves into an unlawful assembly, armed with deadly automatic firing weapons, trespassed into the house of a police Constable by name Pramod and after criminally intimidating him and the other inmates of the house by threatening them with machine guns, committed mischief by fire and also caused damage of a motorcycle and left the place after leaving writings and pamphlets which revealed their intention to excite disaffection towards the Government established by law in India.
(b). The first accused Roopesh and four others were arrested on 4.5.2015 at Coimbatore and crime No. 1/2015 was registered by the "Q" Branch Coimbatore for offence u/s. 120B r/w 124(A) of the IPC and S. 10 of the UA (P) Act, 1967. Based on the information received from the aforesaid Roopesh, the petitioner was arrested on 10.5.2015 by the Payyoli Police and Crime No. 327/15 u/s. 124(A) of the IPC and S. 10, 13 and 19 of the UA (P) Act was registered.
(c). Thereafter when the role played by the petitioner was revealed during interrogation, he was included as the 6th accused in Crime No. 142/2014 of Vellamunda Police Station. The specific allegation against the petitioner is that he assisted the other accused in arranging weapons, food articles, vehicles and also hideouts."
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Certain dates are undisputed:--
i. The formal arrest of the petitioner was recorded on 25.6.2015 at the Central Prison, Kannur.
ii. The petitioner was produced before the Sessions Court, Kalpetta on 2.7.2015
iii. The petitioner was given in police custody from 2.7.2015 to 6.7.2015
iv. He is in judicial custody from 6.7.2015 onwards.
v Investigation officer filed a status report before court on 28.9.2015.
vi. The 90 days period under S. 167(2) as modified expired on 30.9.2015.
vii On 1.10.2015 application seeking default bail was filed.
viii On 6.10.2015, the public prosecutor filed an application seeking continued detention of the appellant as per S. 43D(2) of the UA (P) Act.
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We have heard the learned counsel appearing for the appellant as well as the Learned Additional Director General of Prosecution.
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According to the learned counsel appearing for the appellant, the learned Session Judge has misinterpreted the provisions of law by holding that the report filed by the investigating officer, though dated 22.9.2015, but filed on 28.9.2015, fulfilled the mandate of sub-section 43D(2) of the UA (P) Act. According to the learned counsel, the Apex court right from Hitendra Vishnu Thakur v. State of Maharashtra (AIR 1994 SC 2623) has settled the law on the point and has held that the application filed by the investigating officer for extension of time would not be a substitute for the report of the public prosecutor. In tune with the statutory provisions, the appellant, on the expiry of 90 days, had filed an application under section 167(2) of the Code as modified by S. 43D for default bail, and as no charge had been laid by the time and as no proper extension application was also filed by the public prosecutor, an indefeasible right had accrued in favour of the appellant and the court was bound to release the appellant on bail as prayed for by him. It was finally pointed out that the application seeking continued detention of the appellant was filed by the Public Prosecutor only on 7.10.2015, much after the expiry of 90 days, which could never have been taken as a relevant factor to deny the valuable right of the appellant as it failed to satisfy the requirement under the relevant statute.
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Au Contraire, the Additional Director General of Prosecution, vehemently opposed the interpretation of law advanced by the learned Counsel appearing for the appellant and contended that the report filed by the Deputy Police Superintendent, Mananthavady, the Investigating Officer in the instant case on 28.9.2015 would satisfy the conditions stipulated under S. 43D(2). According to the ADGP, the said report is initialed by the Public Prosecutor as well and it was on the strength of the said application that the extension was granted and the application for bail was rejected by the learned Sessions Judge.
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It is beyond any cavil that the right to bail u/s...
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