Important Point
Statutory right U/s. 167(2) Cr.P.C. shall not be defeated by keeping bail application pending till final report was filed but right does not survive or remain enforceable on challan being filed.

Order

K. Padmanabhan Nair, J.— This is a petition filed under S. 439 of the Code of Criminal Procedure for regular bail.

2. The petitioner is accused No.12 in Crime No.118 of 2003 registered under Ss.302, 307, 326, 273, 201, 120(B) of Indian Penal Code and Ss. 57(A), 55(a), (h) & (i) and 58 of the Abkari Act of Anchalummoodu Police Station, which is known as “Kuppana Hooch Tragedy” and is being investigated by Crime Branch CID, Special Investigation Group-I, Thiruvananthapuram and renumbered the crime as Crime No. 104/CR/SI/2003.

3. On 10.4.2003 and 11.4.2003 a large number of persons consumed illicit liquor. Seven persons died and seven other persons suffered partial loss of sight due to the consumption of that illicit liquor which was mixed with methyl alcohol. The counsel for the petitioner has argued that the petitioner’s case is having no connection with the Kuppana Hooch Tragedy and there is no allegation against the petitioner that he is respon-sible for the offences under Ss. 302, 326, 273, 201, 120(B) of Indian Penal Code.

4. It is true that the prosecution has no case that the petitioner is involved in mixing methyl alcohol with the spirit and hence he is to be prosecuted for the offence under the I.P.C. A perusal of the Case Diary made available shows that one Edison is regularly bringing spirit from other States and from Edison the petitioner was purchasing the same and supplying to the second accused. There are materials to show that the petitioner supplied 350 litres of illicit spirit which he got from accused No.13. From that quantity, 105 litres were supplied to accused No.1 Thambi and the same was used for preparing illicit liquor.

It is true that the petitioner was arrested on 26.5.2003 and is under judicial custody.

5. The petitioner, relying on the decision reported in Uday Mohanlal Acharya v. State of Maharashtra1 has argued that since the final report was not filed within the period specified under S.167(2) of the Code of Criminal Procedure, the petitioner has an indefeasible right to be released on bail and the subsequent filing of the final report will not take away that right. It is argued that the petitioner was illegally arrested on 11.5.2003 and is under judicial custody and he is entitled to be released on bail on 11.7.2003. It is argued that ‘A’ charge against eight accused were filed on 11.7.2003 and ‘B’ charge was filed only on 30.7.2003. It is argued that on 11.7.2003 an indefeasible right to be released was accrued to the petitioner and since ‘B’ charge was filed on 30.7.2003, he is entitled to be released on bail.

6. The learned Public Prosecutor has argued that the principle laid down in Uday Mohanlal Acharya’s case (supra) can have no application to the facts of this case. It is also argued that the contention of the petitioner that he was arrested on 11.5.2003 is not correct and he was arrested only on 26.5.2003. The peti-tioner was arrested on 26.5.2003 and produced before the learned Magistrate on 27.5.2003 and was remanded. Infact that fact is admitted by the petitioner in the petition itself. Though in paragraph 8 it is alleged that the petitioner was taken into custody by the police on 11.5.2003, in paragraph 10 it is admitted that the petitioner was produced before the learned Magistrate on 27.5.2003 and the learned Magistrate remanded him to judicial custody. The case of the petitioner is that from 11.5.2003 till 27.5.2003 he was kept under illegal custody and not that the petitioner was under judicial custody from that date onwards. It is argued that ‘A’ charge was filed before the court on 11.7.2003, but ‘B’ charge was filed only on 30.7.2003. According to the counsel for the petitioner, even accepting the case of the prosecution as such the right to get default bail accrued to the petitioner on 25.7.2003 as no final report for ‘B’ charge was filed till that day. The final report for ‘B’ charge was filed on 30.7.2003. It is argued that the petitioner filed the applicatio