Sunday, 30 August 2020

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.
(c) no Magistrate of the second class, not specially
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
(c) 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
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. Therefore, this bail application is allowed
with the following stringent conditions.
1. Petitioner shall be released on bail on
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 jurisdictional Court.
2. The petitioner shall appear before the
Investigating Officer for interrogation as and when
required. The petitioner shall co-operate with the
investigation and shall not, directly or indirectly make
any inducement, threat or promise 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.
3. Petitioner shall not leave India without
permission of the jurisdictional Court.
4. Petitioner shall not commit an offence similar
to the offence of which he is accused, or suspected, of
the commission of which he is suspected.
5. The petitioner shall strictly abide by the

various guidelines issued by the State Government
and Central Government with respect to keeping of
social distancing in the wake of Covid 19 pandemic.
6. The petitioner shall not enter the
jurisdiction limit of Valiyamala Police Station till the
final report is filed in Crime No.584/2020.
7. If any of the above conditions are violated
by the petitioner, the jurisdictional Court can cancel
the bail in accordance to law, even though the bail is
granted by this Court.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE

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