PULANDAR SINGH ATIRAJSINGH v. STATE OF M P — 1978 DIGILAW 809 (MP)

JUDGMENT : ( 1. ) THIS order shall govern the disposal of Criminal Miscellaneous case No. 651 of 1978 (Bhagwandas v. The State of Madhya Pradesh) as well. ( 2. ) THIS is an application for bail under section 439 of the Code of criminal Procedure against the order dated 22-9-1978, passed by the Sessions judge, Bhind in Criminal Case No. 737 of 1978. ( 3. ) THE facts giving rise to this petition are that the petitioner was arrested on 13-6-1978 on the charge under section 302 read with section 34 of the Indian Penal Code. The allegation against him was that Asharam was murdered in the morning of 21-5-1978 and that the petitioner is responsible for that offence. The prosecution case further states that Raj Bahadur Singh and Sarnam Singh were inside the Gonda when a gun shot was fired and Asha ram who was outside the Gonda was hit. According to post mortem report, there were no scorching, tattooing or black charring marks around the gun shot wounds. It is a case of pellets, dispensing and covering an area of about 4 feet. The application states that both these circumstances clearly indicate that the shot has been fired from a long distance. Eye witnesses, as alleged in the petition, say that the incident was seen from a distance of four feet, which is absolutely false, looking to the nature of the injury. Then the petitioner was arrested on 13-6-1978 and the concerned Court is Magistrate. First Class, mehgaon and no challan was filed in that Court within 60 days of the arrest of the petitioner. The allegation of the prosecution is that on the 60th day, a challan was filed in the Bhind Court, which is not concerning Court and the record has not been sent to Mehgaon Court even though there is a lapse of a period of three months; it is also further submitted that no copy of the challan has been given to the petitioner. On this ground, the petitioner prays for release of his on bail. ( 4. ) THIS application is objected to by the learned Deputy Government advocate. The learned counsel appearing for the petitioner had submitted three objections. The first objection of his is that the challan presented is not a complete challan and, therefore, the provisions are violated and as such, the petitioner is entitled for bail. ( 5. ( 4. ) THIS application is objected to by the learned Deputy Government advocate. The learned counsel appearing for the petitioner had submitted three objections. The first objection of his is that the challan presented is not a complete challan and, therefore, the provisions are violated and as such, the petitioner is entitled for bail. ( 5. ) THE second submission of his is that according to section 167 (2) of the Code of Criminal Procedure, if the challan is not submitted within 60 days to the concerning Court, then the detention will be illegal and as such, his bail application should be allowed. ( 6. ) THIRDLY, he submitted that the challan should have been filed before the concerning Court, i. e. , the Court of the Magistrate First Class, Mehgaon and filing of the challan before the Bhind Court which is not the concerning court is bad in law and this is also a ground for releasing the petitioner on bail. ( 7. ) TO this, the objection of the learned Deputy Government Advocate, appearing for the State, is that even assuming that the challan was filed before the Bhind Court, it will not be illegal because under section 14, Criminal Procedure Code, the Magistrate at Bhind is also competent to take cognizance of the case. Secondly, he submitted that not filing the challan, within 60 days will not make the detention illegal. Under section 167 (2), Criminal Procedure code, the accused has been given a right to ask for the bail. It is not as if as soon as 60 days are over, the detention becomes illegal. As to the objection that the challan presented is not complete, his reply is that the challan fulfils all the requirements of section 173 (2), Criminal Procedure Code. Even otherwise reports of Chemical Analyser and Serologist are waited for and they can be produced at any time. That will not make the challan invalid. Even otherwise under section 173 (8), there is ample power for further investigation in respect of an offence after a report under sub-section (2) and the investigating agency can produce further evidence, oral or documentary and it can forward it to the Magistrate. Lastly, he submitted that all these objections now are academic because the case has been committed to the Sessions Court. ( 8. Lastly, he submitted that all these objections now are academic because the case has been committed to the Sessions Court. ( 8. ) SECTION 167 (2), Criminal Procedure Code reads as under : - "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, authorize the detention of the accused in such custody as such magistrate thinks fit, for 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 that: (a) The Magistrate may authorize 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 authorize the detention of the accused person in custody under this section for a total period exceeding sixty days, 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 section shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter;. . . . . . . . . . . " ( 9. ) THERE is one more provision which we will have to consider along with this provision and that is section 167 (5) of the Code of Criminal Procedure, which reads as follows: " (5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of (he investigation beyond the period of six months is necessary. " ( 10. ) CHAPTER XXXIII deals with provisions as to bail and bonds. It gives cases in which bail can be taken. It also deals as to when bail can be taken in non-bailable offences. " ( 10. ) CHAPTER XXXIII deals with provisions as to bail and bonds. It gives cases in which bail can be taken. It also deals as to when bail can be taken in non-bailable offences. Then rest of the section with the powers of the High court, the Court of Sessions and the amount and discharge from custody and the procedure to be adopted when the bail bond is forfeited. Reading section 167 (2), Criminal Procedure Code along with Chapter XXXIII, it becomes clear that under Chapter XXXIII while granting bail, the Court will have to consider the gravity of the offence, the person, the age, the sex and the physical condition of the person who has committed the offence. The Court will also have to consider whether if he is released on bail, will tamper the witnesses and foremost thing is that when the judgment is passed against him, whether he will surrender before the Court to undergo the punishment awarded to him. But these considerations will not be taken into consideration when the case is covered under section 167 (2) and I think that is the only difference between chapter XXXIII and the present section. A person who is released on bail under Chapter XXXIII and under this provision, the position will be the same. When a person is on bail, he is not quite a free man, but there are certain restrictions imposed on him. His case cannot be equated with that of a free man. Therefore, the submission made by the learned counsel for the petitioner that as soon as 60 days are over, the detention will be illegal, I cannot accept. The accused is given a benefit for the laches of the investigating machinary. The investigating machinery, if it is not vigilant to file a challan within 60 days, then the accused will get the benefit of being released on bail whatever may be the nature of the crime he has committed, but because of this concession given under the law, it cannot be sard that his detention beyond 60 days will become illegal. If that had been so, then the section would have said that after 60 days, the accused will be released forthwith. But that is not the idea we can gather from the wording of the section. When we compare this section with section 167 (5), it becomes very clear. If that had been so, then the section would have said that after 60 days, the accused will be released forthwith. But that is not the idea we can gather from the wording of the section. When we compare this section with section 167 (5), it becomes very clear. Section 167 (5) says that as soon as six months are over, the Court will stop further investigation and if further investigations are stopped, I need not say what will be the result as far as the accused is concerned. Such is not the case with section 167 (2 ). This provision was considered in Gyanu v. State of Karnataka, s1. It lays down as under: "the abovementioned ingredients of the said proviso makes it manifest that when the investigation is continuing, if the period of sixty days from the date of arrest of the concerned accused person expires, the concerned accused secures a right to claim that he should be enlarged on bail and he can exercise that right. If such an accused does claim accordingly and furnishes bail as ordered by the Magistrate, he should be enlarged on bail. Therefore, it cannot at all be said that on the expiry of such period of sixty days, the accused secures the right to be enlarged on bail and as such he can just walk out of custody. He has got to exercise that right by expressing to the Magistrate that he is prepared to be enlarged on bail and to furnish bail, and then only the Magistrate has got to enlarge him on bail. It follows that if the concerned accused does not exercise the right, the power of the magistrate to authorise detention of the concerned accused beyond the period of sixty days, can be exercised provided that the Magistrate is satis-fled that adequate grounds exist for doing so, and the Magistrate would be right in remanding the concerned accused to judicial custody. This is one of the views expressed in Heeramans case, 1975 Cri. L J 1508. and I respectfully agree with this view. This is one of the views expressed in Heeramans case, 1975 Cri. L J 1508. and I respectfully agree with this view. " For expressing this view, the learned Judge has relied on Heeraman v. State of u. P. Relevant observations in this case are as under: "an accused is not to be allowed to just walk out of the place of detention or of the jail after the expiry of sixty days automatically if no charge-sheet has been submitted within that period. If no charge-sheet has been submitted within sixty days, section 167 only empowers an accused to claim bail as of right. But the detention of an accused will continue to be legal till he actually applies for bail or in other words he "is prepared to and does furnish bail". The Magistrate shall not authorise detention for more than sixty days provided the accused person applies for bail on the expiry of the said period and does furnish bail. Even if no charge-sheet was submitted within sixty days but was submitted before the accused applied for bail, it will not be open to the accused to claim that he is entitled to bail as of right by invoking section 167 (2) (a)because as soon as the charge-sheet was submitted, the period of remand pending investigation came to an end and provisions of section 167 (2) (a)would cease to apply to such a case and in such a case bail can be granted only on merits. " This is one view of the matter. The other view of the matter is discussed in prem Raj v. State of Rajasthan, 1976 Cri. L J 455. The relevant portion from this judgment is as under : - "held that section 167 (2) Proviso (a) is mandatory in character and therefore the remand and detention of the accused beyond the period of 60 days which expired on 28-11-1975 was illegal and the accused was entitled to be enlarged on bail. " With all respect at my command, I cannot agree with this proposition. If as said in this ruling, the detention becomes illegal, then there is no question of asking for bail at all after the lapse of 60 days. " With all respect at my command, I cannot agree with this proposition. If as said in this ruling, the detention becomes illegal, then there is no question of asking for bail at all after the lapse of 60 days. A bail is always asked for when the detention is legal and the Court, after seeing that the detention is legal, in spite of that release the accused person on certain conditions. ( 11. ) IN Prem Rajs case (supra), reference to Natabar Parida v. State of orissa, 1975 Cr. L J 1212. is made. But, this Supreme Court judgment does not deal with the aspect of the case which is before me. Therefore, no help can be taken from that judgment. ( 12. ) THEREFORE, the objection of the learned counsel that detention being illegal, he is entitled to bail cannot be accepted. I may refer here to a Division Bench judgment of this Court in Mishrilal v. Judicial Magistrate, biaora, 1975 MPLJ 325 =1975 J L J 397. the relevant observations from this judgment are as under: ". . . . . This is very clear from the heading of that section which is as under: "procedure when investigation cannot be completed in twenty-four hours". As soon as the case is committed to the Court of Sessions, then the provisions of section 209 of the Criminal Procedure Code come into operation and these provisions empower the committing Magistrate to remand the accused to the custody during and until the conclusion of the trial subject to the provisions contained in Chapter XXXIII of the Code relating to bail. Moreover, the first proviso to sub-section (2) of section 167 does not provide that after the expiry of the period of 60 days from the date of arrest the detention of the accused in judicial custody becomes illegal. All that the said provisions lays down is that the accused should be released on bail if he is prepared to and does furnish bail. On behalf of the petitioner, it was admitted that after the expiry of the period of sixty days from the date of commitment, no application was made on their behalf for releasing them on bail. Under the circumstances, the detention of the petitioners has not been and is not shown to be illegal. " I am supported in my view by this judgment. Under the circumstances, the detention of the petitioners has not been and is not shown to be illegal. " I am supported in my view by this judgment. If there would not have been the committal of the case to the Sessions Judge, then the matter would have been different. But as in the present case, it is committed to the Sessions court, section 167 (2), Criminal Procedure Code will have no application. ( 13. ) THE second grievance before me is that when the challan was filed, the copy of the report of the Serologist and the Chemical Analyser is not supplied to the accused, and, therefore, it cannot be said that the challan is properly presented. Section 173 (2), Criminal Procedure Code mentions what the report of the Police officer on completion of the investigation should contain. Section 173 (2), Criminal Procedure Code is as under: "173. Report of Police officer on completion of investigation.- (1) Every investigation under this Chapter shall be complied without unnecessary delay. (2) (i) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the state Government, stating- (a) the names of parties; (b) the nature of information; (c) the names of persons who appear to be acquainted with the circumstances of the case; (d) whether an offence appears to have been committed and, if, so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of offence was first given. " The challan in this case, satisfies the requirements of section 173 (2), Criminal Procedure Code. Added to this, when we read along with section 173 (2), section 173 (8), it makes it abundantly clear that non-supply of the report of the Serologist or Chemical Analyser will not make the challan incomplete. Section 173 (8), Criminal Procedure Code is sufficiently wide enough to cover such type of cases. Added to this, when we read along with section 173 (2), section 173 (8), it makes it abundantly clear that non-supply of the report of the Serologist or Chemical Analyser will not make the challan incomplete. Section 173 (8), Criminal Procedure Code is sufficiently wide enough to cover such type of cases. Therefore, the submission made by the learned counsel for the petitioner, I am not willing to accept and this cannot be a ground for releasing the petitioner on bail. ( 14. ) THE third submission made before me is that the challan is not presented to the concerned Magistrate. Section 14 of the Criminal Procedure code is as under : "14. Local jurisdiction of Judicial Magistrates.- (1) Subject to the control of the High Court, the Chief Judicial Magistrate, may from time to time define the local limits of the areas within which the Magistrates appointed under section 11 or section 13 may exercise all or any of the powers with which they may respectively be invested under this Code. (2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district. " There is no dispute that Mehgaon and Bhind are included in the District bhind. Therefore, the Magistrate at Bhind is competent to act under section 167, Criminal Procedure Code. Section 167 (2), Criminal Procedure code deals with the question whether the Magistrate has or has not jurisdiction to try the case. Therefore, in considering whether bail should be granted or not, whether the Magistrate to whom the accused person is forwarded under section 167 (2), Criminal Procedure Code the question of jurisdiction of that Magistrate is certainly not of any importance and that cannot be made a ground for asking bail for the accused. Therefore, this third contention of the learned counsel for the petitioner cannot also be accepted. ( 15. ) THE result is that the application for bail is rejected. Application rejected.