C.S.Dias, J
1. This is the second application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, (for short ‘BNSS’), by the 10th
accused in Crime No.05/2024 of the Cyber Crime Police Station, Pathanamthitta, which is registered against 12 accused persons for allegedly
committing the offences punishable under Sections 420 and 120-B r/w Section 34 of the Indian Penal Code (in short, 'IPC'). The petitioner was
arrested in Crime No.40/2024 by the Tirur Excise Range Office, Malappuram on 29.06.2024. The petitioner's formal arrest was recorded in the
present crime on 11.07.2024.
2. The crux of the prosecution case is that: the accused, in furtherance of their common intention, had hatched a conspiracy to loot the citizens of the
country and induced the defacto complainant to deposit money with them on the false assurance of giving them higher profit. The accused made
WhatsApp groups named Apex Wealth Group and Kuroto Wealth Management Group on 15.11.2023 and induced the defacto complainant to transfer
Rs.3,45,11,574/- from his bank account to various bank accounts of the accused. The accused failed to pay any profit or return the capital. Thus, the
accused have committed the above offences.
3. Heard; Smt.Dhanya S Nair, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.
4. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material
to substantiate the petitioner’s involvement in the crime. The petitioner was originally arrested on 29.06.2024 in Crime No.40/2024 of the Tirur
Excise Range Office, Malappuram and his formal arrest was recorded in the present crime on 11.07.2024, which is now more than 60 days. The
offences alleged against the petitioner are all punishable for a period up to ten years. The investigation in the case is not complete and the final report
has not been laid. Therefore, the petitioner is entitled to statutory bail. Hence, the application may be allowed.
5. The learned Public Prosecutor opposed the application. He submitted that the accused have committed a grave economic offence. The petitioner is
a person with criminal antecedents. The investigation in the case is not complete and the final report has not been laid.
6. Indisputably, the petitioner was arrested on 29.06.2024 in Crime No.40/2024 referred to above, and the petitioner’s formal arrest was recorded
in the present crime on 11.07.2024. The offences alleged against the petitioner are punishable for a period up to 10 years. The investigation in the case
is not complete and the final report has not been laid.
7. Subsections (1) and (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:-
167. Procedure when investigation cannot be completed in twenty-four hours.â€"(1) Whenever any person is arrested and detained in custody, and it appears that
the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or
information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall
forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the
accused to such Magistrate.
(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 thatâ€" 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in 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 exceedingâ€
(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;]
8. A three-Judge Bench of the Honourable Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra [(2001) 5 SCC 453], reiterated the
legal proposition in Sanjay Dutt v.State through C.B.I., Bombay (supra). In paragraph 13 (3) it was opined thus:
13. x x x x x x (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 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.â€
(emphasis added)
9. In the instant case, as the petitioner has been in judicial custody for the last 61 days, the investigation in the case is not complete, all the offences
alleged against the petitioner are punishable for a period up to ten years, and that the Investigating Officer has not laid the final report, I am satisfied
that the petitioner is entitled to be released on statutory bail, since it is his indefeasible right under Section 167(2) of the Code. Hence, I allow the bail
application.
In the result, the application is allowed, by directing the petitioner to be released on bail on him 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 court having jurisdiction, which shall be subject to the following
conditions:
(i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also
appear before the Investigating Officer as and when required;
(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure 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 or tamper with the evidence in any manner, whatsoever;
(iii) The petitioner shall not commit any offence while he is on bail;
(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file
an affidavit to the effect before the court below on the date of execution of the bond;
(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for
cancellation of bail, if any filed, and pass orders on the same, in accordance with law.
(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.
 (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect
recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila
Aggarwal v. State (NCT of Delhi) and Another [2020 (1) KHC 663].
