IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 Bail Appl..No. 4431 of 2008() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN BA.3913/2008 Dated 19/06/2008 CMP.1521/2008 of J.M.F.C.-II, ERNAKULAM CRIME NO.456/08 OF KADAVANTHRA POLICE STATION PETITIONER ----------------- THOMAS, S/O,KURIAN PANDARATHUNDIYIL HOUSE KADAVANTHRA, ERNAKULAM BY ADV. SRI.P.VIJAYA BHANU RESPONDENTS: ------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, REP. BY THE C.I. OF KADAVANTHRA POLICE STATION BY DIRECTOR GENERAL OF PROSECUTION SRI.P.G.THAMPI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.4431 of 2008 ----------------------------------------- Dated this the 14th July, 2008 O R D E R This petition is for bail. 2. The alleged offences are under Sections 366, 376 and 34 of Indian Penal Code. A 24 year old is the alleged victim. She was being housed in the 'House of Kids' under the care and protection of the first accused. According to prosecution, she was induced by the petitioner to go from her place of residence to the first accused's flat with the intent/knowledge that it is likely that she will be forced or seduced to illicit intercourse by the first accused from his flat. The crime was registered on the basis of a statement given by the girl against the petitioner and the first accused. 3. The first accused allegedly raped the de facto complainant and told her that her photographs were taken. She was made to stay there for about 2 days. Petitioner had arranged food during the stay, took her for a film with first accused and helped her toboard the bus on return. When de facto complainant told the petitioner that she had found a lens in the bath room of the flat, the petitioner told her that there was nothing serious. BA.4431/08 2 4. This is the second application for bail. Learned counsel for petitioner submitted that the petitioner is in custody for the past more than 60 days and charge sheet has not been filed so far. Hence, as per proviso to Section 167(2) of Code of Criminal Procedure, he is entitled for bail. Going by the allegations in the complaint and that of the prosecution, the petitioner is involved only in an offence under Section 366 IPC for which maximum punishment is to undergo imprisonment which may extend to ten years. Therefore, the argument is that the petitioner having allegedly committed only the offence under Section 366 IPC, he is bound to be released on bail by default, since he completes 60 days of detention and the charge is not laid so far. 5. Learned counsel for petitioner also submitted that the petitioner is sick and documents are produced stating that he is under treatment for kidneystone and hence, he may be released on bail for getting proper treatment. Petitioner is a native of Thodupuzha and it is not likely that petitioner will tamper with evidence and influence witnesses and he is prepared to abide by any conditions. He will not move out of Thodupuzha, if so ordered, it is submitted. Learned Director General of Prosecution pointed out that if the petitioner so requires, any treatment will be made available to the petitioner through the jail authorities. But, it may not be made a ground to release the petitioner on bail. BA.4431/08 3 6. On hearing both sides, admittedly, the charge sheet has not been laid in this case and hence, as per the proviso to Section 167 (2) Cr.P.C, the Magistrate Court has no jurisdiction to authorise detention of a person for a period exceeding 60 days, if the investigation relates to an offence punishable with imprisonment which may be less than 10 years. The court cannot exercise its discretion in the matter but the accused is entitled to bail by default on the part of the investigating agency in failing to file the charge sheet within the period stipulated in Section 167(2) Cr.P.C. 7. It is true that if Section 366 IPC is singled out or separated from the other offence under Section 376 IPC, the petitioner may be entitled to benefit under the second proviso to Section 167(2) Cr.P.C and there will be no alternative for the court than to release the petitioner on bail by default, on the failure of the investigating agency to submit the charge sheet within the time prescribed by the Code. But, in this case investigation relates not to an offence under Section 366 IPC alone. It relates to offence other than under Section 366 IPC and an offence under Section 376 IPC is also involved in this case. In cases in which investigation relates to offence under Section 376 IPC for which punishment may be for a term not less than ten years, sixty days of detention may not be crucial. The question is not whether the petitioner has committed a particular offence alone or not but what is crucial is, “what the BA.4431/08 4 investigation relates to”. On the facts of this case, I find that the investigation in this case relates to an offence under Section 376 IPC also which falls under sub-clause (i) of Section 167(2)(a) also and hence, the petitioner may not be entitled to the benefit under Section 167(2)(a)(ii) of Cr.P.C. 8. That apart, it is alleged that offences of rape and as well as the offence falling under Section 366 IPC have also been committed, with the common intention of the first and second accused. Section 34 lays down that when a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Section 33 IPC provides that the word “act” denotes as well a series of acts as a single act. Therefore, the commission of any criminal act by any one of the accused in furtherance of common intention, each of them will be liable for that act, in the same manner, as if it were done by each of such persons, as per Section 34 IPC. Here also, it is not the commission of any offence but it is the commission of “criminal act” which is relevant and crucial. 9. Going by the facts of this case, the offence under Section 376 IPC could be committed only because the alleged victim was supplied by petitioner for illicit intercourse by the first accused and hence it is not possible at this stage to conclusively say that BA.4431/08 5 petitioner did not commit any “criminal act” as referred to in Section 34 IPC. Any way, I leave open the question to be decided at the appropriate stage, after evidence is adduced. 10. This petition is strongly opposed. Learned Director General of Prosecution reiterated that the petitioner has a star role in the activities of the first accused and the offence against the girl has been committed only because of the petitioner, who procured the girl for the first accused and he had made it so easy for the first accused to commit the offences. It is also submitted that the petitioner was conscience-keeper of the first accused and if he is released on bail, the evidence collected so far in connection with the rape of the girl is likely to be tampered with or destroyed. The criminal activities committed by the accused on the girl have already wounded the public conscience and if the petitioner is released on bail and if such release aids the destruction of the evidence so far gathered, it is likely that it will only deepen the injury caused to the society already. 11. On hearing both sides, I find that offence under Section 366 IPC cannot be singled out and separated from other offence, and the petitioner is not entitled for bail by default under the proviso to Section 167(2)(a)(ii) Cr.P.C for the reasons already discussed. I am also satisfied, on the facts of this case, as pointed out by the learned Director General of Prosecution that the release BA.4431/08 6 of the petitioner may affect the entire investigation and it is likely that crucial witnesses may be influenced or threatened and the evidence be destroyed. It may decide even the fate of the very case itself. 12. I am also satisfied that the petitioner can be given proper treatment at any of the Medical Colleges or other hospitals through the jail authority but that cannot be made a ground to release the petitioner on bail. Hence, this petition is dismissed. K.HEMA, JUDGE vgs.