Law Web: Whether Court can release accused prosecuted for the offence of attempt to rape on default bail on expiry of 60 from the date of the first remand if chargesheet is not filed within that period?

It is true that in Section 376(2) IPC, it is mentioned that

the imprisonment for life means imprisonment for the remainder

of that person's natural life. It is a settled position that

imprisonment for life means imprisonment for the remainder of

that person's natural life. There is no dispute on that. But when

there is a specific provision in the Indian Penal Code which says

that in calculating fractions of terms of punishment,

imprisonment for life shall be reckoned as equivalent to

imprisonment for twenty years we cannot ignore that provision

and interpret that imprisonment for life means imprisonment for

the remainder of that person's natural life even while computing

the detention period under Section 167(2) Cr.P.C. As observed by

the Apex Court the interpretation of the provisions of 167(2)

Cr.PC should be liberal. On a reading of Section 167(2)(a)(ii)

Cr.P.C along with 511 of 376 IPC coupled with Section 57 of the

IPC, it is clear that an accused who is charged for the offence

under Section 511 of 376 IPC can be imprisonment only for a

period of ten years. If that is the case, the petitioner is entitled

statutory bail in this case. Admittedly, 60 days is over after the

first remand of the petitioner. The petitioner was arrested on

19.6.2020. As on today admittedly the final report is not filed.

Therefore, the petitioner is entitled statutory bail under Section

167(2)(a)(ii) Cr.P.C.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR. JUSTICE P.V.KUNHIKRISHNAN

Bail Appl..No.4876 OF 2020

CRIME NO.584/2020

VINESH VISWAMBARAN, Vs STATE OF KERALA

Dated: 18th day of August 2020

This Bail Application filed under Section 439 of Criminal

Procedure Code was heard through Video Conference.

2. The petitioner is the accused in Crime No.584/2020 of

Valiyamala Police Station, Thiruvananthapuram. The above case

is registered against the petitioner alleging offences punishable

under Sections 511 of 376 and 511 of 306 IPC.

3. The prosecution case is that the petitioner is a relative of

the husband of the victim. The petitioner used to come to the

defacto complainant's house and used to stay in that house

occasionally. It is alleged that on 18.6.2020 the petitioner went

to the house of the defacto complainant and stayed there till 4

pm. The prosecution's further case is that the petitioner left the

house and came back at about 8.30 pm on that day and stayed in

the house. On the next morning, at about 7 am when the

husband of the defacto complainant left the house for his

employment, the petitioner came out of the room and tried to

commit rape on the defacto complainant. The victim resisted the

same. When the accused continued the attempt, the victim

poured kerosene on her body and set fire. Therefore it is alleged

that the petitioner committed the offence under Sections 511 of

376 and 511 of 306 IPC. The petitioner was arrested on

19.6.2020.

4. Heard the counsel for the petitioner and the learned

Public Prosecutor.

5. The counsel for the petitioner submitted that the

petitioner is entitled statutory bail under Section 167(2)(a)(ii) of

Cr.P.C. The counsel submitted that the offence alleged against

the petitioner is under Section 511 of 376 IPC. The counsel

argued that as per Section 511 of IPC, if no express provision is

made by the Code for the punishment of an attempt to commit an

offence, the sentence that can be imposed is one half of the

longest term of imprisonment for which he can be convicted for

the main offence. According to the counsel, the maximum

punishment that can be imposed under Section 376 IPC is life

imprisonment. The counsel submitted that Section 57 of IPC says

that in calculating fractions of terms of punishment,

imprisonment for life shall be reckoned as equivalent to

imprisonment for twenty years. The counsel submitted that the

petitioner was arrested on 19.6.2020. Now 60 days over. The

maximum punishment that can be imposed against the petitioner

under Sections 511 of 376 IPC is ten years, and under Section

511 of 306 IPC is only five years. Therefore, the petitioner is

entitled statutory bail under Section 167(2)(a)(ii) of Cr.P.C

6. The learned Public Prosecutor seriously opposed the bail

application. Public Prosecutor submitted that the petitioner

committed a heinous crime. The Public Prosecutor submitted that

the petitioner is not entitled statutory bail. The Public

Prosecutor submitted that the sentence that can be imposed

under Section 376(2) IPC is rigorous imprisonment for a term

which shall not be less than ten years but which may extend to

imprisonment for life. The Public Prosecutor submitted that in

Section 376(2) IPC, it is clearly stated that imprisonment for life

means imprisonment for the remainder of that person's natural

life. When such a specific clause is there under Section 376(2)

IPC, the Public Prosecutor submitted that Section 57 of IPC is not

applicable in the facts and circumstances of the case.

7. After considering the facts of the case, I am of the

considered view that the petitioner is not entitled bail on the

basis of the merit of the case. Prima facie, it is clear that the

petitioner committed the offence under Section 511 of 376 IPC

and under Section 511 of 306 IPC. The manner in which the

petitioner committed the offence is also cruel and heinous.

8. The next point to be decided in this case is whether

the petitioner is entitled statutory bail under Section 167(2)(a)(ii)

Cr.P.C. For a proper consideration of the same, Section 167(2) of

the Cr.P.C is extracted hereunder.

“167(1) xxxxxxx

(2) The Magistrate to whom an accused person is

forwarded under this section may, whether he has or has

not jurisdiction to try the case, from time to time,

authorise the detention of the accused in such custody as

such Magistrate thinks fit, for a term not exceeding

fifteen days in the whole; 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:

Provided that-

(a) the Magistrate may authorise the detention of the

accused person, otherwise than in the custody of the

police, 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 paragraph 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 not less than ten years;

(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 XXXIII for the purposes of that

Chapter;

(b) 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 medium of

electronic video linkage.

empowered in this behalf by the High Court, shall

authorise detention in the custody of the police.

Explanation I.- For the avoidance of doubts, it is hereby

declared that, notwithstanding the expiry of the period

specified in paragraph (a), the accused shall be detained

in custody so long as he does not furnish bail;

Explanation II- If any question arises whether an accused

person was produced before the Magistrate as required

under clause (b), the production of the accused person

may be proved by his signature on the order authorising

detention or by the order certified by the Magistrate as to

production of the accused person through the medium of

electronic video linkage, as the case may be:

Provided further that in case of woman under eighteen

years of age, the detention shall be authorised to be in the

custody of a remand home or recognized social

institution”

9. From Section 167(2)(a) of Cr.P.C, it is clear that the

Magistrate cannot authorise detention of the accused beyond a

period of 60 days if the investigation relates to an offence in

which the maximum imprisonment is ten years. Therefore the

question is whether the maximum punishment that can imposed

under Section 511 of 376 and Section 511 of 306 IPC is ten

years or not. As far as Section 306 IPC is concerned, the

maximum punishment that can be imposed is ten years.

Therefore, if an accused committed an offence under Section

511 of 306 IPC, the maximum punishment that can be imposed is

five years.

10. Then the question is, what is the maximum punishment

that can be imposed under Section 511 of 376 IPC. The Public

Prosecutor submitted that Section 376(2) IPC is applicable in

this case. According to the Public Prosecutor, in this case, the

offence under Section 376(2)(f) and (k) IPC is attracted. The

Public Prosecutor submitted that the petitioner is a relative of

the victim. Section 376(2)(f) IPC, is attracted when an accused

being a relative, guardian or teacher of, or a person in a position

of trust or authority towards the woman, commits rape on a

woman. Admittedly, the petitioner is a relative of the victim. At

this stage, it cannot be said that the offence under Section

376(2) IPC is not prima facie made out against the petitioner.

Then the question is what is punishment that can be imposed

under Section 376(2)(f) and (k) IPC. For that purpose Section

376(2)(f) and (k) IPC are extracted hereunder.

“376. Punishment for rape:-

(1)xxxxxx

(2)Whoever,-

(a) xxxxx

(b) xxxx

(d) xxxx

(e) xxxx

(f) being a relative, guardian or teacher of, or

a person in a position of trust or authority

towards the woman, commits rape on such

woman; or

(g) xxxx

(h) xxxx

(j) xxxx

(k) being in a position of control or dominance

over a woman, commits rape on such woman;

shall be punished with rigorous imprisonment for a

term which shall not be less than ten years, but which

may extend to imprisonment for life, which shall mean

imprisonment for the remainder of that person's

natural life, and shall also be liable to fine.”

11. A reading of the above section, it is clear that the

maximum imprisonment that can be imposed under Section

376(2) IPC is imprisonment for life. The sentence that can be

imposed under Section 376(1) IPC is also imprisonment for life.

But there is a difference in the sentence portion in Section 376(1)

and Section 376(2) IPC. In 376(1) IPC, it is only stated that the

punishment that can be imposed may extend to imprisonment for

life. But in Section 376(2)IPC, it is stated that the punishment

may extend to imprisonment for life, which shall mean

imprisonment for the remainder of that person's natural life. The

contention of the Public Prosecutor is that in the light of the

difference in Sections 376(1) and 376(2) IPC about the meaning

of the imprisonment for life, Section 57 of IPC is not applicable

while calculating the period of detention under Section 167(2)(a)

Cr.P.C. The Public Prosecutor also relied the judgment of the

Apex Court in Deepak Gulati v. State of Haryana (AIR 2013

SC 2071). The Public Prosecutor submitted that the offence

alleged against the petitioner is under Section 376 IPC and the

Apex Court observed that the offence under Section 376 IPC is a

heinous offence and it is a crime against the society. Therefore,

the Public Prosecutor submitted that Section 57 of IPC is not

applicable even for computing the period of detention under

Section 167 Cr.P.C in the facts and circumstances of the case. I

cannot accept the contention of the Public Prosecutor. Section 57

of IPC read like this:

“57. In calculating fractions of terms of punishment,

imprisonment for life shall be reckoned as equivalent to

imprisonment for twenty years.”

12. Section 57 of IPC clearly says that in calculating

fractions of terms of punishment, imprisonment for life shall be

reckoned as equivalent to imprisonment for twenty years. Section

511 of IPC is extracted hereunder:

“Whoever attempts to commit an offence punishable by

this Code with imprisonment for life or imprisonment, or to

cause such an offence to be committed, and in such attempt

does any act towards the commission of the offence, shall,

where no express provision is made by this Code for the

punishment of such attempt, be punished with imprisonment

of any description provided for the offence, for a term which

may extend to one-half of the imprisonment for life or, as the

case may be, one-half of the longest term of imprisonment

provided for that offence, or with such fine as is provided for

the offence, or with both.” (Emphasis supplied)

13. Section 511 of IPC says that whoever attempts to

commit an offence punishable by this Code with imprisonment for

life or imprisonment, or to cause such an offence to be committed,

and in such attempt does any act towards the commission of the

offence, shall, where no express provision is made by this Code for

the punishment of such attempt, be punished with imprisonment of

any description provided for the offence, for a term which may

extend to one-half of the imprisonment for life or, as the case may

be, one-half of the longest term of imprisonment provided for that

offence, or with such fine as is provided for the offence, or with

both. As far as Section 376(2) IPC is concerned the maximum

punishment that can be imposed is life imprisonment. Section 57

of IPC clearly says that in calculating fractions of terms of

punishment, imprisonment for life shall be reckoned as equivalent

to imprisonment for twenty years. The contention of the Public

Prosecutor is that since there is an explanation in Section 376(2)

IPC about the life imprisonment as 'remainder of that person's

natural life' Section 57 of IPC cannot be adopted for computing 60

days as per Section 167(2) Cr.P.C. If this contention of the Public

Prosecutor is accepted the sentence that can be imposed under

Section 511 of 376(2) IPC and under Section 376(2) IPC will be the

same. That will not be a proper interpretation of the provisions.

Anyway, in this case, the question is about the computation of the

period of detention under Section 167(2)(a) Cr.P.C. Simply because

a meaning is given to the 'imprisonment for life' in Section 372(2)

IPC, it can't be said that for computing the period of detention

under Section 167(2) Cr.P.C, Section 57 of IPC is not applicable. I

cannot accept this contention of the prosecution because the Apex

Court observed that while interpreting Section 167Cr.P.C a liberal

approach is necessary. In Rakesh Kumar Paul v. State of Assam

(2017(4) KHC 470), the Apex Court observed like this:

“39. 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

indefeasible right. Reference was made to Mohammed

Iqbal Madar Sheikh v. State of Maharashtra, 1996 KHC

1405 : 1996(1) SCC 722 : 1996 SCC (Cri) 202 : JT 1996(1)

SC 114 : 1996(4) KarLJ 29 : 1996(1) SCALE 123: 1996 (1)

SCR 183 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 prosecution as well as

some Courts must be very strongly and vehementally

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.

40. Procedure for obtaining default bail

In the present case, it was also argued by the learned

counsel for the State that the petitioner did not apply for

'default bail' on or after 4th January, 2017 till 24th January,

2017 on which date his indefeasible right got extinguished

on the filing of the charge sheet. Strictly speaking this is

correct since the petitioner applied for regular bail on 11th

January, 2017 in the Gauhati High Court – he made no

specific application for grant of 'default bail'. However,

the application for regular bail filed by the accused on 11th

January, 2017 did advert to the statutory period for filing a

charge sheet having expired and that perhaps no charge

sheet had in fact being filed. In any event, this issue was

argued by the learned counsel for the petitioner in the

High Court and it was considered but not accepted by the

High Court. The High Court did not reject the submission

on the ground of maintainability but on merits. Therefore,

it is not as if the petitioner did not make any application

for default bail-such an application was definitely made (if

not in writing) then at least orally before the High Court.

In our opinion, in matters of personal liberty, we cannot

and should not be too technical and must lean in favour of

personal liberty. Consequently, whether the accused

makes a written application for 'default bail' or an oral

application for 'default bail' is of no consequence. The

concerned Court must deal with such an application by

considering the statutory requirements namely, whether

the statutory period for filing a charge sheet or challan

has expired, whether the charge sheet or challan has been

filed and whether the accused is prepared to and does

furnish bail.

41. We take this view keeping in mind that in matters of

personal liberty and Art.21 of the Constitution, it is not

always advisable to be formalistic or technical. The history

of the personal liberty jurisprudence of this Court and

other constitutional Courts includes petitions for a writ of

habeas corpus and for other writs being entertained even

on the basis of a letter addressed to the Chief Justice or

the Court.” (Emphasis supplied)

14. The Apex Court observed that in matters of personal

liberty and Article 21 of the Constitution, it is not always

advisable to be formalistic or technical. The Apex Court also

observed that the history of the personal liberty jurisprudence of

this Court and other constitutional courts includes petitions for a

writ of habeas corpus and for other writs being entertained even

on the basis of a letter addressed to the Chief Justice or the

Court. The sum and substance of the Apex Court's decision is

that the provision of Section 167 Cr.P.C cannot be interpreted by

the court in a technical manner. The Apex Court reminded that

the question is about the personal liberty of an accused.

15. It is true that in Section 376(2) IPC, it is mentioned that