STATE OF KARNATAKA v. RAVINDRANATHAN NAIR — 1977 DIGILAW 143 (KAR)

( 1 ) THIS criminal petition under S. 439 (2) Crlpc is directed against the order of the II Addl Sessions Judge, Bangalore, granting bail to the respondent. ( 2 ) SINCE the petition raises a somewhat intricate but interesting point of law, it was argued at some length. In order to appreciate the arguments advanced by the State Public Prosecutor, a summary of the facts may be given at the outset to elaborate the law point involved. The respondent-accused in this case was charged for committing a murder under S. 302 IPC. The date of the offence was 5-2-1971 and the accused was arrested on 3-10-1975. No sooner the offence was committed, investigation started and obviously that was done sometime in 1971. After the arrest of the accused, it seems the investigation was completed and a charge sheet was filed in the Court on 29-1-1976. The accused applied for bail before the Magistrate, but since the case was committed for trial to the Sessions Judge, the said petition was not decided. Subsequently, the accused applied for bail before the learned Sessions Judge. One of the contentions on behalf of the accused related to proviso (a) of S. 167 (2) of the new Code, wherein it is stated that if the accused person was in custody for a total period of 60 days he shall be released on bail on the expiry of that period, if he was prepared to and did furnish bail. The learned sessions Judge considered that plea and having accepted it granted bail to the respondent. Against that order of granting bail the State has tiled the present petition. ( 3 ) THE learned State Public Prosecutor essentially relied on the decision Natabar Parida v. State of Orissa AIR. 1975 SC. 1465. . In that case it was observed by their Lordships that during the pendency of the investigation, which started before the coming into force of the new Code, the accused could not press into service proviso (a) to S. 167 (2) and claim to be released on bail as a matter of right. But, in order to appreciate the observations made by their Lordships, the facts which arose in that case would have to be considered. But, in order to appreciate the observations made by their Lordships, the facts which arose in that case would have to be considered. As evident from the judgment, the accused who applied for bail in that case was arrested on 14-3-1974, that is to say, on a date prior to the coming into force of the new Code. The argument advanced before their Lordships was that on the interpretation of the language used in S. 428 of the new Code, as per decision by bhagwati, J, who delivered the judgment in B. P. Andre v. Superintendent, central Jail AIR. 1975 SC, 164. it could be held that to get the benefit of bail under S. 167 (1) of the new Code, it was immaterial that the arrest of the accused had taken place while the old Code was in force. In B. P. Andre (supra) (2) the question before the Supreme Court was, as to whether s. 428 was retrospective and the conviction made and sentence awarded while the old Code was in force, could be dealt with for the benefit of set-off under the said section. It was held by the Supreme Court that s. 428 applied, because the language used in the section covered the conviction made and sentence awarded even at the time when the old code was in force. It was stated that similarly it should be held for the proviso (a) to Sec. 167 (2) that the accused would get the benefit of being released on bail after 60 days even though he was arrested prior to the date of coming into force of the new Code. This argument was repelled by their Lordships in Natabar Parida's case (l) (supra) and it was observed :unlike the wordings of S. 428 the language of S. 167 (1) which will govern sub-sec (2) also, is ' whenever any person is arrested, suggesting thereby that the section would be attracted when the arrest is made after coming into force of the Act. "therefore, their Lordships held categorically that whenever arrest is made after coming into force of the new Code, 3. 167 (1) would be attracted and the benefit of proviso (a) to sub-sec (2) of S. 167 would be granted to the accused. "therefore, their Lordships held categorically that whenever arrest is made after coming into force of the new Code, 3. 167 (1) would be attracted and the benefit of proviso (a) to sub-sec (2) of S. 167 would be granted to the accused. That was the essential feature attached to the case of Natdbar Parida (l) (supra) and the decision turned upon the question as to whether the proviso (a) to S. 167 (2) applied to the case of the accused who was arrested when the new Code was not in force. It was held that the said proviso (a) did not apply and the accused could not be released as of right after the expiry of 60 days because he remained tin that custody during investigation. ( 4 ) THE difficulty arises because their Lordships of the Supreme court also considered the alternative argument, conceding that S. 167, (1) applied even to the case of an accused who is arrested before coming into force of that section in the new Code. While dealing with that argument in the alternative, the following observation was made :we may, however, hasten to add that in spite of the phrase is arrested' occurring in Sec. 167 (1), since the old Code has been repealed by sub-sec (1) of Sec. 484 of the new Code, the provision would have applied, a jonration if the savings provided in sub-sec (2) would not have applied to the situation with which we are concerned in this case. In our judgment Cl (a) of sub-sec (2) of Sec. 484 does apply". At another place in the same paragraph their Lordships observed : as we have said above, invoking the power of the Court under s. 344 of the old Code by the Investigating Officer would be a part of the process of investigation which is to be continued and made in accordance with the old Code. That being so, we hold that the appellants in this case cannot claim to be released under proviso (a) to section 167 (2) of the new Code. The reasoning that prevailed before their Lordships was that under the saving clause of Section 484 the investigation under Section 344 of the old Code was to be completed under that provision. That being so, we hold that the appellants in this case cannot claim to be released under proviso (a) to section 167 (2) of the new Code. The reasoning that prevailed before their Lordships was that under the saving clause of Section 484 the investigation under Section 344 of the old Code was to be completed under that provision. Since the power of remand was integral to the process of investigation, necessarily the proviso (a) to S. 167 (2) of the new Code was excluded. That is why the above noted observation was made in the judgment. With great respect, whatever be the observation made by their Lordships in pursuance to the argument in the alternative, it was all along subject to their Lordships' prior observation, essentially based on the arrest of the accused on a date prior to the coming into force of the new Code. As per the categorical observation of their Lordships, the language used in S. 167 (1) of the new code refers to the arrest made during the time when the new Code is in force and the section does not apply to the arrest made at a time when the old Code was in operation. Therefore, it was held that S. 167 (1) or the proviso (a) to sub-sec (2) of that section never came into force and as such the prayer of the accused claiming his bail after the expiry 'of the 'period of 60 days was not sustainable. The scale in that case turned under that reasoning and that would be a distinguishing feature in the present case. ( 5 ) IT is manifest in the instant case, the accused was arrested on a date when the new Code was in force and therefore the proviso (a) to 8. 167 (2) decidedly applied, and that there was no escape for the criminal court but to release him on bail which right was even acknowledged by their Lordships in Natabar Panda (1) (supra), when they con- sidered that such a law led to a ' paradise for the criminals', but because the command of the Legislature is there, the Courts cannot interfere with that right. Therefore, in my opinion, the learned State Public Prosecutor cannot take assistance from Natabar Porid (l) (supra) for any stark proposition that in a case where Sec. 344 of the old Code applies, the proviso (a) to Sec. 167 (2) of the new Code, if applicable, would be rendered nugatory and the mandatory requirement of law to release the accused on bail after the expiry of 60 days period of detention would not be applied. ( 6 ) IN Natabar Parida (1) (supra) their Lordships of the Supreme court approved the decision in the same case of the Orissa High Court (1975) 1 Crllj. 853. a Division Bench case. In that case the Orissa High Court also made some distinction because Sec. 167 of the new Code falls in Chap. XII, which deals with information to the police and their powers to investigate and Chap. XXXIII which deals with provisione as to bail and bonds. It was considered that the power to investigate and the power to grant bail having been classified in two different chapters of the Code, the release of the accused under the proviso (a) to S. 167 (2) would not be a bail granted to him under Chap. XXXIII, although there is a deeming clause in proviso (a) itself that every person released on bail under that section is deemed to be so released under the provisions of chap. XXXIII for the purposes of that Chapter. This deeming provision would have the effect of converting an order of release under the proviso (a) as an order of release on bail under Chap. XXXIII. However, noticing the difference in the classification of the Chapters for the two sections, their Lordships in the Orissa case held that the impact of s. 344 of the old Code would defeat the proviso (a) to Sec. 167 (2) of the new Code. It is abundantly clear that their Lordships in the Orissa case were dealing with the case of the arrest of an accused that took place while the old Code was in force. Therefore, upon a plain reading of s. 167 (2) of the new Code, it is clear that the said section never applied to that arrest. Therefore, the distinction would be as to when the accused was arrested, either when the old Code was in force or when the new code came into operation. Therefore, upon a plain reading of s. 167 (2) of the new Code, it is clear that the said section never applied to that arrest. Therefore, the distinction would be as to when the accused was arrested, either when the old Code was in force or when the new code came into operation. If he was arrested when the new Code was in operation, S. 167 of the new Code would have its full application. Therefore, the decision in Natabar Parida (1) (supra) would not come to the assistance of the learned State Public Prosecutor, inas much as the accused in the present case was arrested in October 1975 when the new code was already in operation. ( 7 ) THERE is another facet of the argument, which appears not to have been raised before the Supreme Court. There can be no doubt that the power of remand by the Magistrate during the process of investigation and collection of evidence was an integral part of the process and that power was meant to be exercised whenever necessary to aid the investigation and collection of further evidence. That power, no doubt is preserved in S. 309 which deals with the power to postpone or adjourn proceedings. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained by a remand, that would be a reasonable case for a remand. That is clear from the explanation appended to S. 844 of the old Code. But the investigation which is done and collection of evidence resorted to to my mind, has nothing to do with the accused remaining in custody or being released on bail. In sub-sec (1a) of S. 344 itself, the remand can only be exercised by a Magistrate if the accused is in custody, meaning thereby that they were contemplating a situation where the accused would not be in custody and in that contingency there would be no question of remand, nevertheless the investigation would go on, evidence would be collected and postponement of enquiry or trial may be granted to facilitate the prosecution to collect all evidence, if there has been sufficient evidence to raise a suspicion that the accused may have committed an offence. Therefore the release of the accused on bail has got nothing to do with the process' of investigation. If the argument is understood in that perspective, perhaps, application of S. 344 will have no impact on the proviso (a) to Section 167 (2 ). If the. investigation is delayed by more than 60 days, the legislature considered it proper that the accused must be released on bail, nonetheless the investigation can go on and whenever convenient the enquiry or trial can proceed. Therefore, it could not be stated that in the case of the present nature where S. 167 undoubtedly applied, the benefit' of the proviso to Sec. 167 (2) should not be given to the accused simply because the investigation under S. 344 was kept alive under the saving clause of Section 484. ( 8 ) THE main contention of the learned Counsel has been that the power of remand, being integral with the power to collect evidence, the said power is preserved under S. 344 and therefore, even if proviso (a) to Sec. 167 (2) of the new Code applies, that will not go to defeat the power of remand preserved under S. 344 and the latter will prevail over the former. In reply to that argument, it has to be understood that the power of remand for collection of evidence and for which a proceeding is adjourned, is even now preserved in the new S. 309 and in case that power is interpreted to negative proviso (a) to S. 167 (2), the latter provision would be rendered nugatory in every case. That could not be the intention of the legislature. U|s. 173 (8 ). further investigation can take place even after the police challan is submitted to the Court. This power of further investigation is, in other words, the power to collect fresh evidence leading to fresh order of remand under S. 309. In fact the expression "remand" is not used in S. 167 but is used only in S. 309. further investigation can take place even after the police challan is submitted to the Court. This power of further investigation is, in other words, the power to collect fresh evidence leading to fresh order of remand under S. 309. In fact the expression "remand" is not used in S. 167 but is used only in S. 309. Both these sections have their application independent to each other In my opinion, if the impact of S. 309 leaves proviso (a) to S. 167 (2) in tact, similarly the impact of S. 344 of the old Code will leave that provision in tact and the accused would get the benefit of release after expiry of 60 days within that proviso no sooner it is held that the said proviso applies. There fore, in my opinion Natabar Panda (1) (supra) essentially depended upon the circumstance that the accused in that case was arrested when the old Code was in force and Sec. 167 of the new Code, in terms never applied to that arrest. ( 9 ) IN this view of the matter, in my opinion, the order of the learned Sessions Judge cannot be assailed and the benefit of proviso (a) to sub-sec (2) of S. 167 of the new Code could not be denied to the accused. ( 10 ) TNE petition is - therefore, without any merit and the same is dismissed. --- *** --- .