State of Karnataka v. R. Ravindranathan Nair — 1977 DIGILAW 305 (MAD)

Order.- This criminal petition under section 439(2), Criminal Procedure Code, is directed against the order of the Second Additional Sessions Judge, Bangalore, granting bail to the respondent. 2. Since the petition raises a some what 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 section 302 Indian Penal Code. The date of the offence was 5th February, 1971 and the accused was arrested on 3rd October, 1975. No sooner the offence was committed, investigation started and obviously that was done some time in 1971. After the arrest of the accused, it seems, the investigation was completed and a charge sheet was filed in the Court on 29th January, 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 section 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 filed he present petition. 3. The learned. State Public Prosecutor essentially relied on the decision Natabar Parida and others v. State of Orissa1. 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 section 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 14th March, 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 section 428 of the new Code,as per decision by Bhagwati, J., who delivered the judgment in B.P. Andre v. Superintendent, Central Jail2, it could be held, that to get the benefit of bail under section 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. Andre2, the question before the Supreme Court was, as to whether section 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 setoff under the said section. It was held by the Supreme Court that section 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 beheld for the proviso (a) to section 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 Natadar Parida1 and it was observed: “Unlike the wordings of section 428 the language of section 167(1) which will govern sub-section (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, section 167(1) would be attracted and the benefit of proviso (a) to sub-section (2) of section 167 would be granted to the accused. That was the essential feature attached to the case of Natabar Parida1, and the decision turned upon the question as to whether the proviso (a) to section 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 61 days because he remained in that custody during investigation. 4. The difficulty arises because their Lordships of the Supreme Court also considered the alternative argument, conceding that section 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 section 167(1), since the old Code has been repealed by subsection (1) of section 484 of the new Code, the provision would have applied, a fortiori, if the savings provided in sub-section (2) would not have applied to the situation with which we are concerned in this case. In our judgment clause (a) of sub-section (2) of section 484 does apply.” At another place in the Fame paragraph their Lordships observed: “As we have said above, invoking the power of the Court under section 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. Since the power of remand was integral to the process of investigation, necessarily the proviso (a) to section 167(2) of the new Code was excluded. That is why the above noted observation was made in the judgment. Since the power of remand was integral to the process of investigation, necessarily the proviso (a) to section 167(2) of the new Code was excluded. That is why the above noted observation was made in the judgment. With great respects, 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 section 167(1) of the new Code refers to the arrest made during the time when he 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 section 167(1) orthe proviso (a) to sub-section (2) of that section never came in to force and as such the prayer of the accused from 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 section 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 Parida1 when they considered 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 chat right. Therefore, in my opinion, the learned State Public Prosecutor, cannot take assistance from Malabar Parida1 for any stark proposition that in a case where section 344 of the old Code applies the proviso (a) to section 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 Parida1 their Lordships of the Supreme Court approved the decision in the same case of the Orissa High Court a Division Bench case. 6. In Natabar Parida1 their Lordships of the Supreme Court approved the decision in the same case of the Orissa High Court a Division Bench case. In that case in Natabar Perida v. State2 the Orissa High Court also made some distinction because section 167 of the new Code, falls in Chapter XII, which deals with information to the police and their powers to investigate and Chapter XXXIII which deals with provisions 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 section 167(2) would not be a bail granted to him under Chapter 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 previsions of Chapter 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 Chapter 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 section 344 of the old Code would defeat the proviso (a) to section 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 section 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, section 167 of the new Code would have its full application. Therefore, the decision in Natabar Parida1 would not come to the assistance of the learned State Public Prosecutor, inasmuch 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. Therefore, the decision in Natabar Parida1 would not come to the assistance of the learned State Public Prosecutor, inasmuch 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 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 section 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 section 344 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. section (1)-A of section 344 itself, the remand can only be exercised by a Magistrate ii 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 section 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. 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 section 167 undoubtedly applied, the benefit of the proviso to section 167(2) should not be given to the accused simply because the investigation under section 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 section 344 and therefore, even if proviso (a) to section 167(2) of the new Code applies, that will not go to defeat the power of remand preserved under section 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 section 309 and in case that power is interpreted to negative proviso (a) to section 167 (2), the latter provision, would be rendered nugatory in every case. That could not be the intention of the legislature. Under section 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 section 399. In fact the expression ‘remand’ is not used in section 167 but is used only in section 309. Both these sections have their application independent to each other. In my opinion if the impact of section 309 leaves proviso (a) to section 167(2) intact, similarly the impact of section 344 of the old Code will leave that provision intact and the accused would get the benefit of release after expiry of 61 days within that proviso no sooner it is held that the said proviso applies. Therefore in my opinion Natabar Parida1 essentially depended upon the circumstance that the accused in that case was arrested when the old. Code was in force and section 167 of the new Code, in terms never applied to that arrest. 9. Therefore in my opinion Natabar Parida1 essentially depended upon the circumstance that the accused in that case was arrested when the old. Code was in force and section 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-section (2) of section 167 of the new Code could not be denied to the accused. 10. The petition is, therefore, without any merit, and the same is dismissed.