Allowed

Thomas Daniel v. State of Kerala

Kerala HC26 Nov 2020Bail Appl./7597/2020

Case brief

AI extract

What is this about?

This bail application was disposed of by the Kerala High Court granting statutory bail to four accused persons. The court held that statutory bail under Section 167(2) Cr.P.C. is an indefeasible right accruing after 60 days, which cannot be negated by a prosecution application for extension of time for investigation. The applicants were directed to be released on bail. Bail was granted under the C

What did the court decide?

Applicants released on bail on execution of bond for ₹5,00,000/- each with two solvent sureties on conditions including surrendering passports and cooperating with investigation.

Thomas Daniel Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942

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Bail Appl..No.7597 OF 2020

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CRIME NO.1740/2020 OF Konni Police Station , Pathanamthitta

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PETITIONERS/ACCUSED:

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1 THOMAS DANIEL AGED 66 YEARS INDIKATTIL HOUSE, P.O. VAKAYAR, KONNI, PATHANAMTHITTA 686 698 686698

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2 PRABHA THOMAS AGED 61 YEARS INDIIKATTIL HOUSE, P.O. VAKAYAR, KONNI, PATHANAMTHITTA – 686 698 686698

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3 DR.RINU MARIAM THOMAS AGED 35 YEARS INDIIKATTIL HOUSE, P.O. VAKAYAR, KONNI, PATHANAMTHITTA – 686 698

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4 REBA MARY THOMAS AGED 26 YEARS INDIIKATTIL HOUSE, P.O. VAKAYAR, KONNI, PATHANAMTHITTA – 686 698

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BY ADV. SRI.C.S.MANU

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031

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R1 BY PUBLIC PROSECUTOR

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OTHER PRESENT:

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C N PRABHAKARAN, SR PP, MANOJ V GEORGE

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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O R D E R

Dated this the 26th day of November 2020

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Application under Section 439 Cr.P.C for regular bail.

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The applicants are accused 1 to 4 in Crime No.1740/2020 of Konni Police Station for having allegedly committed offences punishable under Sections 406 and 420 read with Section 34 of the IPC and Section 5 of the Kerala Protection of Interest of Depositors in Financial Establishments Act, 2013 (Act 7 of 2015), Sections 3, 21(2) (3), and 5 read with Sections 23 and 25(1) of the Banning of Unregulated Deposits Scheme Act 2019, Section 45-S of the Reserve Bank of India Act, 1934, Sections 17 and 18 of the Kerala Money Lenders Act, 1958 and Section 5 of the Kerala Protection of Interests of Depositors in Financial Institutions Act, 2013 (7 of 2015). The second applicant is the wife of the first applicant and the rest of the accused are their daughters.

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The prosecution case is that the accused who are the

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Managing Directors and Directors of M/s.Popular Finance dishonestly induced the de facto complainant Aniyamma Koshy to deposit a sum of Rs.8,00,000/- in MRPN Popular Exports Ltd. on 18.10.2019, and a sum of Rs.10,00,000/- for a period of five years in My Popular Marine Products LLP and also made the de facto complainant and her husband George Babu to deposit an amount of Rs.5,00,000/- on 10.08.2018 promising to pay interest at rate of 12 % every month and to deposit an amount of Rs.3,00,000/- on 01.12.2018 in Mary Ranny Trading LLP, Pathanamthitta Branch, and thus obtained a total amount of Rs.26,00,000/- and promised them that the amount would be doubled in 7 years. However, the accused by not paying the amount promised when asked for a refund, committed criminal breach of trust and cheated the de facto complainant and her husband. Moreover, they also committed the offences under the other statutes by violating the provisions of law prescribed therein.

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The 1^st applicant states that he alone was conducting the business as the Managing Director. His wife and daughters, are not involved in the business directly, though their names figure as Directors/Partners in certain firms/companies. The 2^nd applicant is a house wife. The 3^rd applicant is a post graduate allopathy Doctor. She is MD in Dermatology. Her husband Mr.Villy is also a Post Graduate Doctor in Radiology. The second daughter, Mrs. Ria Ann Thomas, is also a Post Graduate Doctor, MD in Pulmonology. She is working as Assistant Surgeon in Kerala Government Health Service. She was appointed as such on advice through the Kerala Public Service Commission. Her husband Mr.Anoop is a Pediatric Surgeon, a Post Graduate holding MS and MCh. The 4th applicant, the youngest among the children of applicants 1 and 2 completed her 4^th year MBBS. But she had to dropout in the 4^th year MBBS as she was suffering from psychotic depression. She has been under medical treatment .

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A true copy of the medical certificate dated 06.09.2020 issued by the Psychiatrist Dr.Anisha Nakulan, is Annexure -2. The fixed deposits of the de facto complainant and her husband are not yet due for repayment. Interest due was being paid without default till April,2020. The alleged default occurred only due to the financial crisis arose due to the lockdowns imposed by the Central and State Governments on account of the outbreak of COVID-19. It was beyond the control of the accused, particularly the 1st applicant who was running the business from 1965 onwards, without any sort of complaint from any of the depositors. The COVID -19 badly affected his business.

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The applicants were arrested on 29.08.2020 and remanded to judicial custody on the 30.08.2020. The offences alleged against the accused does not relate to offences punishable with death, imprisonment for life, imprisonment for a term of not less than 10 years. If that be so, under the

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provisions of Section 167 (2) (a) (ii) Cr.P.C., on expiry of the period of 60 days, the accused are entitled to be released on statutory bail.

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The applicants had approached this Court seeking regular bail under Section 439 Cr.P.C. The application for bail was heard and reserved for orders. In the meanwhile, 60 days had elapsed and the application for bail was permitted to be withdrawn with the liberty to approach the jurisdictional Court for statutory bail. Accordingly, the applicants filed Crl.M.P.No. 2573/2020 before the jurisdictional Court. However, vide Order dated 02.11.2020, the learned Sessions Judge-III, Alappuzha, dismissed the aforesaid application, relying upon the decision of the Hon'ble Supreme Court in Rakesh Kumar Paul v. State of Assam [AIR 2017 SC 3948].

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It is submitted for the applicants that the learned Sessions Judge did not comprehend the dictum laid down in the aforesaid decision and held that the accused could be, on

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being found guilty, sentenced with imprisonment up to 10 years and therefore, 90 days is a time for granting of statutory bail and not 60 days as claimed by the applicants.

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The only question that arises for consideration before this Court is whether the applicants are entitled to statutory bail on completion of 60 days in judicial custody.

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Heard the learned counsel appearing for the applicants, the learned counsel appearing for the de facto complainant and also the learned Public Prosecutor.

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The argument of the learned counsel appearing for the de facto complainant and the learned Public Prosecutor is that even though the offences stated in the F.I.R are punishable only with imprisonment up to 10 years, being a banking company, the offence committed by the applicants would squarely come within the purview of Section 409 I.P.C which attracts imprisonment over 10 years. Hence, the applicants are not entitled to statutory bail on completion of

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60 days of remand. The learned counsel appearing for the de facto complainant and the learned Prosecutor have argued much about the plight of the de facto complainant and the other depositors who have lost their hard earned money because of the criminal breach of trust and cheating perpetrated by the accused. Hence it is submitted that even though the offence under Section 409 I.P.C has not been incorporated in the F.I.R, from the facts and circumstances of this case, the offence would be attracted. It is also stated that in a number of other cases registered against the applicants in other police stations, offence under Section 409 I.P.C has also been incorporated. Moreover, it is submitted by the learned Prosecutor that the prosecution has filed an application before the jurisdictional Court seeking an extension of time to complete investigation and that the application filed by the prosecution has been allowed by the Court. Under the circumstances, the applicants are not entitled to statutory bail

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on completion of 60 days of detention.

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There is no doubt that the learned Sessions Judge has misunderstood and misinterpreted the dictum laid down in Rakesh Kumar Paul (supra). A reading of the following paragraph in the judgment would make it clear.

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“25. While it is true that merely because a minimum sentence is provided for in the Statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance? It was held that it is eventually for the Court to decide what sentence should be imposed given the range available. Undoubtedly, the Legislature can bind the sentencing Court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum is laid down, the sentencing Judge has no option but to give a sentence "not less than" that

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sentence provided for. Therefore, the words "not less than" occurring in Clause (i) to proviso (a) of S.167(2) of the Cr.P.C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of S.167 of the Cr.P.C. these words must relate to an offence punishable with a minimum of 10 years imprisonment.”

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Hence, it is adequately clear that the learned Sessions Judge went wrong in interpreting the dictum laid down by the Hon'ble Supreme Court in denying statutory bail which is an indefeasible right of the accused. The Hon'ble Supreme Court

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has in a more recent decision, Kasi S. v. State Thr. the Inspector of Police, Samaynallur Police Station, Madurai District [2020 (3) KHC 600] referring to the various earlier decisions rendered by the Hon'ble Apex Court, observed thus:

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“12. Again, there has been very detailed consideration of S.167 by a Three - Judge Bench of this Court in Rakesh Kumar Paul v. State of Assam. (2017 (4) KHC 470 : 2017

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(15) SCC 67 : 2017 (2) KLD 443 : 2017 (9) SCALE 24 : ILR 2017 (3) Ker. 673 : AIR 2017 SC 3948 : 2017 (4) KLT 284 : 2017 (4) KLJ NOC 8 : 2018 CriLJ 155.) This Court in the above case has traced the legislative history of the provision of S.167. This Court in the above case emphasised that the debate on S.167 must also be looked at from the perspective of expeditious conclusion of investigation and from the angle of personal liberty. This Court also held that right for default bail is indefeasible right which cannot be allowed to be frustrated by the prosecution. Following was laid down in paragraphs 37, 38 and 39:

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"37. This Court had occasion to review the entire case law on the subject in Union of India v. Nirala Yadav, 2014 (9) SCC 457. In that decision, reference was made to Uday Mohanlal Acharya v. State of Maharashtra, 2001 (5) SCC 453 and the conclusions arrived at in that decision. We are concerned with Conclusion (3) which reads as follows: "13.(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

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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."

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This Court also dealt with the decision rendered in Sanjay Dutt, 1994 (5) SCC 410 and noted that the principle laid down by the Constitution bench is to the effect that if the charge sheet is not filed and the right for "default bail" has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The accused can avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond.

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This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the Court frustrates the

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indefeasible right. Reference was made to Mohd. Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) SCC 722 wherein it was observed that some Courts keep the application for "default bail" pending for some days so that in the meantime a charge - sheet is submitted. While such a practice both on the part of the prosecution as well as some Courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for "default bail" during the interregnum when the statutory period for filing the charge - sheet or challan expires and the submission of the charge - sheet or challan in Court."

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The learned counsel appearing for the de facto complainant has stated that the prosecution has filed an application for extension of time to submit the final report. A report was called for from the learned jurisdictional Judge and it is informed that the application filed by the prosecution seeking

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extension of time to complete the investigation has been allowed. Under the circumstances, the learned counsel appearing for the de facto complainant submits that the Court can extend the time for investigation prescribed under Section 167(2) Cr.P.C. I do not agree with the learned counsel.

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In Achpal alias Ramswaroop and Another v. State of Rajasthan [2018 KHC 6714 : 2019 (14) SCC 599] after referring to the earlier judgments of the Hon'ble Supreme Court, including the judgment in Rakesh Kumar Paul (supra), it was laid down that the provisions of the Code do not empower anyone to extend the period within which the investigation must be completed. The Hon'ble Apex Court held that no Court either directly or indirectly can extend such period. In paragraph 20 it is held thus:

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"20. We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must

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be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and the Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including S.167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 03/07/2018 was the submission that the investigation would be completed within two months by a gazetted police officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned counsel for the State and the complainant."

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In view of the above decisions, the argument of the learned counsel appearing for the de facto complainant and the learned Prosecutor that the Court has power to grant extension of time stipulated under Section 167(2) Cr.P.C to complete the investigation is fallacious. As referred to above such provisions are made only in certain special statutes referred to therein which specifically states that the prosecution has time beyond the period stipulated in Section 167(2) Cr.P.C to complete investigation and that even the said time could be extended for appropriate reasons. The scheme laid down under the provisions of S.167(2) Cr.P.C gives due regard to the personal liberty of a person. Without submission of charge sheet, 60 days or 90 days as may be applicable, an accused cannot be detained in custody considering the due recognition to the personal liberty. Even on filing of charge sheet subsequently, the prosecution cannot insist on cancellation of bail that was granted under Section 167(2)

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Cr.P.C; unless there are special reasons germane to Sections 437 (5) or 439 (2) Cr.P.C (see Aslam Babalal Desai v. State of Maharashtra [1992(4) SCC 272] and Pradeep Ram v. State of Jharkhand and Another ]AIR 2019 SC 3193] ).

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The upshot of the above discussions is that the applicants are entitled to statutory bail under Section 167 (2) (a) (ii) Cr.P.C. The application is allowed and the applicants are directed to be released on bail on execution of a bond for ₹5,00,000/- (Rupees five lakhs only) each with two solvent sureties, each for for like amount to the satisfaction of the jurisdictional Court and on following conditions:

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(i) The applicants shall appear before the investigating officer as and when called for, and cooperate with the investigation.

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(ii) They shall not tamper with evidence, influence or intimidate witnesses.

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(iii) They shall surrender their passports before the

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jurisdictional Court and shall not go abroad without seeking permission of the said Court.

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