[Attempt To Rape] Accused U/s Section 511 R/w 376 IPC Entitled To Statutory Bail If Final Report Is Not Filed Within Sixty Days After Remand: Kerala HC [Read Order]

The Kerala High Court has held that an accused charged for attempt to rape under Section 511 read with Section 376, is entitled to statutory bail if no Final Report is filed within sixty days.

The court was considering a bail application filed by a person accused of attempting to rape. The accused contended that he is entitled statutory bail under Section 167(2)(a)(ii) of Cr.P.C as he was arrested on 19.6.2020 and sixty days of detention is over.

As per Section 167(2)(a) of the Code of Criminal Procedure, a 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. Thus the legal issue considered by the court was whether the maximum punishment that can imposed under Section 511 of 376 and Section 511 of 306 IPC is ten years or not.

The court noted Section 57 IPC which states that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. The court further observed that the 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. 

Public Prosecutor, opposing the bail plea, contended 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, the bench noted.

The court, referring to Rakesh Kumar Paul v. State of Assam (2017(4) KHC 470), said that while construing Section 167 Cr.P.C a liberal approach is necessary. Justice PV Kunhikrishnan said:

"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."

Case details
Case name: Vinesh vs. State of Kerala
Case no.: Bail Appl..No.4876 OF 2020 
Coram: Justice PV Kunhikrishnan
Counsel: Adv Latheesh Sebastian , PP Renjith TR 

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